.-  ^  i ' 


r 


THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A  TREATISE 


ON    THE  ■  LAW    OF 


MECHANICS'  LIENS 


AND 


BUILDING  CONTRACTS 


^ITH 

ANNOTATED   FORMS 


PUBLISHED   BY 

BENDER-MOSS 


REVISED,    CORRECTED     BROUGHT   DOWN    TO    DATE 
AND    COMPLETED 

BY 
JAMES  M.  KERR 

in 

EDITOR  CYCLOPEDIA  CALTFOUNIA  CODE=! 
AUTHOR  OF  KERR  ON   REAL  PROPERTY,   KERR  ON   HOMICIDE.    ElO. 


SAN  FRANCISCO 
BENDER-MOSS     COMPANY 

Law  Publishep-s  and  Booksellers 
1908 


Copyright,  1908 
Bv  Bender- Moss  Company 

T 
K4633rw 

\9o% 


FOEEWORD. 

In  this  treatise  an  effort  has  been  made  to  give  the  profes- 
sion an  exhaustive  —  in  the  territory  treated  —  and  practical 
work  on  Mechanics'  Liens  and  Bnilding  Contracts,  with  a 
full  set  of  carefully  prepared  and  annotated  forms. 

Scope  of  the  work.  The  subjects  mentioned  have  been 
exhaustively  treated  for  the  jurisdictions  covered,  to  wit, 
California,  Arizona.  Colorado,  Hawaii,  Idaho,  Montana, 
Nevada,  New  Mexico.  Oklahoma,  Oregon,  Utah,  Washington, 
and  Wyoming,  and  the  work  will  be  found  equally  service- 
able in  other  jurisdictions,  especially  in  Kansas,  North  and 
South  Dakota,  and  Texas. 

Method  of  treatment.  The  cases  in  each  jurisdiction  have 
been  kept  separate,  under  the  appropriate  titles,  so  that  one 
desiring  to  follow  the  law  of  any  state  from  subject  to  sub- 
ject may  do  so  without  difficulty,  thus  rendering  the  work, 
in  a  measure,  a  practical  treatise  for  each  and  every  juris- 
diction covered  therein. 

Subjects  discussed.  Among  other  things  may  be  men- 
tioned the  eight  chapters  devoted  to  the  Original  Contract ; 
and  the  chapter  on  the  Effect  of  the  Validity  and  Invalidity 
of  the  Original  Contract  will  be  recognized  as  a  new  treat- 
ment of  an  important  subject.  The  entire  title  on  Limita- 
tions on  Liens  has  been  discussed  in  a  manner  quite  different 
from  that  of  prior  works.  The  chapter  on  Owner  and  Em- 
ployer and  the  chapter  on  Agency,  it  is  believed,  have  intro- 
duced a  clearer  statement  of  the  peculiar  relations  existing 
between  the  owner  and  those  improving  real  property  than 
any  that  has  been  heretofore  published.  The  eluipter  on 
Architect  and  that  on  Sureties  will  be  found  valuable  lo 
those  closely  in  touch  with  building  operations.  The  laAv  of 
procedure  has  likewise  received  careful  treatment. 

Many  new  definitions  are  given,  especially  those  of  "  Stat- 
utory Original  Contract,"  "  Original  Contractor,"  "  Material- 
man," "  Subcontractor,"  "  Subcontract,"  "  Extra  Work,"  and 

(iii) 


iv  FOREWORD. 

the  like,  where  confusion  has  -reigned.  And,  particularly,  the 
underlj'ing  grand  divisions  of  the  statute,  to  which  all  points 
are  referred,  have  been  indicated  under  each  appropriate 
head. 

Reconciliation  of  conflict.  An  effort  has  been  made  to 
reconcile  apparently  conflicting  decisions,  and  to  show  the 
present  value  of  authorities,  as  well  as  divergences  from 
standard  doctrine.  Where  confusion  has  appeared,  it  has 
been  the  endeavor  to  indicate  the  proper  course,  at  all  times 
being  careful  to  distinguish  the  court's  statement  from  the 
writer's  own  opinion.  The  true  rulings  announced  by  the 
courts  are  set  forth,  irrespective  of  the  formal  statements  of 
syllabi. 

The  Table  of  Correlated  Sections  of  the  Statutes  of  the 
different  states  prefixed  will  be  found  to  be  extremely  useful 
to  those  desiring  to  compare  the  statutes  and  decisions  of 
their  own  state  with  those  of  other  states,  cross-references 
being  made  to  the  text  where  the  subject  is  discussed.  This 
table  will  also  be  found  valuable  in  tracing  authorities 
decided  hereafter. 

Part  ni,  consisting  of  Forms,  contains  rather  those  which 
involve  more  complicated  facts  than  those  which  are  simple, 
this  being  considered  more  helpful  to  the  practitioner.  This 
part  is  thoroughly  annotated,  and  cross-references  are  made 
therein  to  the  subject-matter  in  the  text  where  discussed. 
References  are  also  made  to  other  forms  to  be  found  in  the 
reports  themselves,  thus  giving  the  reader  ready  access  to 
numerous  forms. 

The  Index  has  been  prepared  with  care,  with  the  view  of 
rendering  it  most  serviceable  to  all  users  of  the  treatise,  and 
the  wiiole  work  revised,  corrected,  brought  down  to  date,  and 
completed  by  James  M.  Kerr. 

San  Feancisco,  December  5,  1908. 


CONTENTS. 
PART  I. 

-    SUBSTANTIVE    LAW,    OR    PRIMARY    RIGHTS. 
CHAPTER    I. 

HISTORY,  SPIRIT,  NATURE,  AND  CONSTRUCTION  OP  THE  LAW. 

§    1.  Introductory. 

§    2.  General    divisions    of    subject.      California    statute    distin- 
guished. 

§    3.  Questions  raised  in  the  decisions. 

§    4.  Historical. 

§    5.  Evolution  of  California  mechanic's-lien  law. 

§    6.  Spirit  of  the  law. 

§    7.  Theory  of  the  mechanic's-lien  law. 

§    8.  A  favored  lien. 

§    9.  General  nature  of  the  lien.     Plan  of  discussion. 

§  10.  I.  General  classification  of  liens  of  this  character. 

§  11.  Another  classification. 

§  12.  The  classification  adopted  herein. 

§  13.  Same.     Contractual    relation   between   owner   and   original 
contractor. 

§  14.  Same.     Valid  and  void  contract.     Effect. 

§  15.  Same.     The  object  or  thing  to  which  the  lien  attaches. 

§  16.  Same.     Lien  on  structure  separate  from  land. 

§  17.  Same.     Lien  on  the  fund. 

§  18.  II.  The  kinship  between  statutes  of  the  various  states. 

§  19.  III.  The  general  peculiarities  of  mechanics'  liens. 

§  20.  Relation  of  lien  to  the  debt. 

§  21.  Mechanic's  lien  and  mortgage  compared. 

§  22.  Nature  of  action  to  foreclose  lien. 

§  23.  Nature  and  scope  of  right  conferred. 

§  24.  Construction  of  mechanic's-lien  statutes.      Scope  of  discus- 
sion. 

§  25.  Same.     Confusion  in  the  authorities. 

§  26.  Same.     Penal  provisions. 

§  27.  Same.     Resume. 

(v) 


Vi  CONTENTS. 

CHAPTER    II. 
CONSTITUTIONAL    ASPECTS,    AND    THE    LAW    APPLICABLE. 

§  28.  Constitutional  provisions  creating  the  lien. 

§  29.  Same.     Operation  of  the  constitution. 

§  30.  Raising  question  of  constitutionality. 

§  31.  Constitutionality  of  lien  statutes  generally. 

§  32.  The  contractual  relation. 

§  33.  Same.    Valid  contract. 

§  34.  Same.     Power  of  reputed  owner.     Estoppel. 

§  35.  "  Impairing  obligation  of  contracts." 

§  36.  Retrospective  laws. 

§  37.  Same.     Homestead.     Priorities. 

§  38.  Repeals. 

§  39.  Contractor's  bond. 

§  40.  Attorneys'  fees  and  costs. 

§  41.  Jurisdiction.     Special  case. 


CHAPTER    III. 

PERSONS    ENTITLED.     IN    GENERAL. 

i  42.     Constitutional  and  legislative  classifications. 
43.     Classification  as  to  relation  to  owner  or  employer, 
i  44.     Same.     As  to  individuality  of  claimants. 


CHAPTER    IV. 
ORIGINAL    CONTRACTORS. 

45.  Definition  of  "  original  contractor." 

46.  Same.     One  test.     Intermediate  liens. 

47.  Same.     Four  essential  factors. 

48.  Same.     Two  or  more  original  contractors. 

49.  First  test.     Privity. 

50.  Same.     Holder  of  legal  title. 

51.  Same.     Tenant. 

52.  Same.     Void  contract. 

i  53.  Same.     Implied  original  contract. 

54.  Second  test.     Intermediate  lien-holders.     . 

1 55.  Same.     Agency. 

i  56.  Same.     Direct  contract  with  owner. 

( 57.  Same.     Material-man. 

158.  Third  test.     Personal  liability. 


CONTENTS.  Vll 

§  59.     Fourth  test.     Labor  contract. 

§  60.  Distinction  between  "  original  contractor  "  and  "  material- 
man." 

§  61.  General  rights  of  original  contractors.  As  against  person 
who  "  caused  "  the  improvement  to  be  made. 

§  62.     Same.     As  against  other  persons  in  privity  with  him. 

§  63.     Same.     As  against  other  persons. 

§  64.  Greneral  obligations  of  original  contractors.  To  person 
causing  improvement  to  be  made. 

§  65.     Same.     To  other  persons. 


CHAPTER   V. 

SUBCONTRACTORS. 

66.  Definition  of  "  subcontractor." 

67.  Different  degrees  of  subcontractors. 

i  68.  Distinction.     Subcontractor  and  material-man. 

69.  Same.    Subcontractor  and  employees  of  material-man. 

70.  General  rights  of  subcontractors.     Constitution, 
i  71.  Same.     Valid  contract. 

72.  Same.     Void  contract, 

i  73.  Same.     Personal  rights, 

i  74.  Same.     Amount  of  claim. 

75.  Same.     Priorities. 

(  76.  General  obligations  of  subcontractors. 


CHAPTER    VI. 

MATERIAL-MEN. 

§  77.  Distinction.     Material-man,    original    contractor,    and    sub- 
contractor. 

§  78.  Definition  of  "  material-man." 

§  79.  Who  are  not  material-men. 

§  80.  Same.     Placing  materials  in  situ. 

S  81.  Distinction  between  material-man  and  subcontractor. 

§82.  Circumstances  under  which  lien  for  materials  is  given.     The 

contract.     Use  of  materials. 

§  83.  Same.     Contract  for  sale,  or  for  labor. 

§  84.  Same.     Formalities.     Recording  contract. 

§  85.  Same.     As  affected  by  original  contract. 

§  86.  Same.     Other  general  essentials. 

S  87.  Same.     Nature  and  manner  of  use  of  materials. 

S  88.  Same.     Definition  of  "  furnished." 

§  89.  Same.    Materials,  how  "  used." 


Viii  CONTENTS. 

§    90.  Same.     Lien,  when  allowed.     Package. 

§    91.  Same.     Carriage  charges. 

§    92.  Same.     Nature  of  the    work    on    the    property    for    which 

the  materials  are  furnished. 

§    93.  Same.     Alteration,  construction,  addition  to,  repair. 

§    94.  Same.     Extent  of  alteration  or  repair. 

§    95.  Same.     Fixtures. 

§    96.  Same.     In  mining  claims  and  mines. 

§    97.  Same.     Street-work,  grading,  etc. 

§    98.  Same.     Nature  of  property   for   which   material    must   be 

furnished.     Generally. 

§    99.  Same.    Mines  and  mining  claims. 

§  100.  Same. .  Lien  allowed. 

§  101.  General  rights  of  material-men. 

§  102.  General  obligations  of  material-men. 

§  103.  Same.     Knowledge  of  terms  of  original  contract.      Fraud. 


CHAPTER  Vn. 

PERSONS    PERFORMING    LABOR. 

§  104.  Scope  of  chapter. 

§  105.  Statutory  provision. 

§  106.  Constitutional  provision. 

§  107.  Laborer  distinguished  from  contractor,  subcontractor, 
and  material-man. 

§  108.  Laborer  does  not  create  intermediate  lien-holders. 

§  109.  Personal  services. 

§  110.  Definitions.     Various  kinds  of  laborers. 

§  111.  Nature  of  labor  for  which  lien  is  given. 

§  112.  General  rights  of  laborers.  Similar  to  those  of  material- 
men. 

§  113.  Same.     Priorities. 

§  114.  Same.     Material-man's  laborers. 

§  115.  Same.     Death  of  employer. 

§  116.  Same.     Public  work. 

§  117.  General  obligations  of  laborers. 

§  118.  Same.     Death  of  employer. 


CHAPTER    Vin. 

ARCHITECTS. 

119.  Architects.     Their  regulation. 

120.  Statutory  provisions. 

121.  Definition  of  "  architect." 


CONTENTS.  IX 

122.  Contract  of  unlicensed  architect. 

123.  Rights  of  architects. 
1 124.  Right  to  lien. 

■  125.  Powers  of  architect. 

:  126.  Relation  between  owner  and  architect. 

i  127.  Same.     Agent  of  owner. 

I  128.  Architect  as  subcontractor. 

!  129.  Obligations  of  architects. 


CHAPTER  IX. 

LABOR    FOR    WHICH    A    LIEN    IS    GIVEN. 

§  130.  Scope  of  chapter. 

§  131.  Statutory  provisions,  generally.      Structures.    First  clause. 

§  132.  Same.     Mines.     Second  clause. 

§  133.  Same.     Grading,  etc. 

§  134.  Same.     Three  grand  divisions.     Generally. 

§  135.  Structures  and  mines.     In  general. 

§  136.  Importance  of  fixing  clause  under  which  case  falls. 

§  137.  Same.     Classes  not  mutually  exclusive. 

§  138.  Definition  of  labor  "  bestowed." 

§  139.  Grading  and    other    work    under    section    eleven    hundred 

and  ninety-one.     Generally. 

§  140.  Classes.     How  discussed  at  this  time. 

§  141.  "  Improvement,"  defined.     Refers  to  object. 

§  142.  Structures,  and  grading    and    other    work,    under    section 

eleven  hundred  and  ninety-one. 

§  143.  Structures.     Liens  allowed. 

§  144.  "  Construction,  alteration,  addition  to,  or  repair." 

§  145.  Same.     Importance  of  determination. 

§  146.  Character  of  alteration. 

§  147.  Distinction  between  alteration  and  repair. 

§  148.  Same.     Alteration.     Erection. 

§  149.  Work  in  mines  and  mining  claims.     Second  clause. 

§  150.  Same.     Liens  allowed. 

§  151.  Same.     Notice  of  non-responsibility.     Tunnel. 

§  152.  Same.     Drifting. 

§  153.  Same.     Running  tunnel. 

§  154.  Same.     Shaft.     Mining  instrumentalities. 

§  155.  Same.     Watchman  of  idle  mine. 

§  156.  Grading,   etc.,   under  section   eleven    hundred   and   ninety- 
one. 

§  157.  Same.     Work  not  enforceable  under  this  section. 

§  158.  Same.     Meaning  of  "  improves,"  "  improvement." 

§  159.  Same.     Relation  to  work  on  structures. 

§  160.  Same.     Liens  allowed. 


X  CONTENTS. 

§  161.  Labor  for  which  lien  is  not  given  in  any  event. 

§  162.  Same.     Preliminary  work. 

§  163.  Same.     Teaming  for  material-man. 

§164.  Same.     Material-man's  laborer. 

§  165.  Same.     Test,  legitimate  connection  with  worli  of  mine. 


CHAPTER     X. 

OBJECT     ON    WHICH     LABOR    MUST     BE     PERFORMED. 

§  166.  Distinction  between  "  object  "  and  "  property." 

§  167.  Constitutional  provision. 

§  168.  Division  of  the  statute. 

§  169.  Statutory  provisions. 

§170.  Definition  of  terms  used  herein. 

§  171.  Same.     "  Improvement."     "  Structure." 

§  172.  Structure  on  a  mine.     Oil-well. 

§  173.  "  Structures,"  in  general.     First  clause  of  statute. 

§  174.  Structures  not  enumerated  in  statute. 

§  175.  Structures  enumerated  in  statute.     Buildings. 

§  1 76.  Same.     Bridges. 

§  177.  Same.     Aqueduct,  ditch,  and  flume. 

§  178.  Same.     Well. 

§  179.  Same.     Tunnel. 

§180.  Same.     Machinery. 

§181.  Same.     Railroad. 

§  182.  Mining  claims,  and  real  property    worked  as  a  mine.      Sec- 
ond clause  of  statute. 

§  183.  Definition  of  "  mine." 

§184.  Grading  and  street-work  under  code  provision. 

§  185.  Fixtures.     In  general. 

§186.  Same.     Question  of  fact.     Building. 

§  187.  Same.     Principles  of  determination. 

§  188.  Lien  primarily  on  structure. 

§  189.  Work  upon  fixtures,  how  deemed. 

§  190.  The  severance  of  buildings  from  the  freehold. 

§  191.  Work  on  fixtures  in  mine. 

§  192.  Public  property. 


CHAPTER  XI. 
BUILDING  CONTRACTS.     GENERAL  PRINCIPLES. 

§193.     General  principles  applicable. 

§194.     Term  "original  contract"  not  used  in  the  statute. 


CONTENTS.  XI 

§  195.  Essentials  of  contract.     How  treated  herein. 

§  196.  Definition  of  "  contract." 

§  197.  Definition  of  "  building  contract." 

§  198.  Parties  to  contract.     Competency. 

§  199.  Same.     Guardian  of  minor. 

§  200.  Same.     Executor. 

§  201.  Same.     Corporations. 

§  20''.  Same.    Owner.    Contract  not  binding,  contractor's  lien  fails. 

Implied  contract. 

§  203.  Same.     Owner. 

§  204.  Same.     Owner.     Street-work. 

§  205.  Contract  made  with  reference  to  statute. 

§  206.  Consent. 

§  207.  Same.     Fraud.     Mistake. 

§  208.  Same.     Indefiniteness  of  contract.     False  reference  to  plans 

and  specifications. 

§  209.  Consideration. 

§  210.  Ratification. 

§  211.  Definition  of  "  original  contract." 

§  212.  Same.     Owner,  laborer,  and  material-man. 

§  213.  Same.     Subcontractor's  contract. 

§  214.  Same.     Definition    of    "  statutory     original    contracts "    and 

■'  non-statutory  original  contracts." 

§  215.  Same.     Contract  for  street-work. 


CHAPTER   XII. 

BUILDING    CONTRACTS    (CONTINUED).     CONSTRUCTION    OF 

SAME.     IN   GENERAL. 

§  216.  Construction  of  building  contracts.     In  general. 

§  217.  Several  contracts  relating  to  the  same  matters. 

§  218.  Ambiguity  or  uncertainty  in  contract. 

§  219.  Particular  clauses.     General  intent. 

§  220.  Entire  and  severable  contracts. 

§  221.  Dependent  and  independent  promises. 

§  222.  Joint  and  several  contracts. 

§  223.  Contract  explained  by  circumstances. 

§  224.  Reasonable  stipulations,  when  implied. 

§  225.  Same.     Time  of  performance  unspecified. 

§  226.  Warranty. 

§  227.  Construction  of  statutory  original  contracts.     Penalty. 

§  228.  Instances  of  construction  of  contracts. 


XU  CONTENTS. 

CHAPTER    XIII. 

BUILDING  CONTRACTS   (CONTINUED).   COMMON  CLAUSES 
PECULIAR  TO  BUILDING  CONTRACTS.  IN  GENERAL. 

§  229.  Scope  of  chapter. 

§  230.  Arbitration  clause.     California. 

§  231.  Same.     Agreement  to  arbitrate  not  final. 

§  232.  Same.     When    procuring   award   condition    precedent   to   re- 
covery. 

§  233.  Same.     Distinction  between  two  classes  of  cases. 

§  234.  Same.     Submission  to  arbitration  revocable. 

§  23.5.  Same.     Good  faith  and  open  dealings  of  arbitrators. 

§  236.  Estimates. 

§  237.  Liquidated  damages. 

§  238.  Certificates. 

§  239.  Certificate,  when  excused. 

§  240.  Waiver  of  certificate. 

§  241.  Same.     Dismissal  of  architect. 

§  242.  Conclusiveness  of  certificate. 

§  243.  Extra  work.     Generally. 

§  244.  Same.     Definition. 

§  24.").  Same.     Extra  work  provided  for  in  contract. 

§  246.  Same.     Contract  in  writing. 

§  247.  Same.     Verbal  alteration  of  original  contract. 

§  248.  Same.     Estoppel. 

§  249.  Same.     Arbitration. 

§  250.  Same.     Void  contract. 

§  251.  Payments.     How  considered  herein. 

§252.  Same.     Conditions  precedent. 

§253.  Same.     Waiver. 

§  254.  Same.     Application  of  payments. 

§  255.  Liens.     Statutory  provision.     California. 

§  256.  Same.     Condition  precedent. 

§  257.  Same.     Public  property. 


CHAPTER    XIV. 

BUILDING  CONTRACTS  (CONTINUED).   NON-STATUTORY 
ORIGINAL  CONTRACTS. 

258.  Method  of  treatment. 

259.  Statutory  and  non-statutory  original  contracts  compared. 

260.  Same.     Implied  contract. 

261.  Same.     Contract  price  less  than  one  thousand  dollars. 
26.?.  Same.     Contract  price  "computable. 

263.     What  in  no  event  a  statutory  original'  contract. 


CONTENTS.  Xm 

§  264.  Provisions  not  applicable  to  non-statutory  original  contracts. 

§  265.  Same.     Writing.     Filing.     Payments. 

§  266.  Same.     Notice  to  owner.     Premature  payments. 

§  267.  Same.     Payment  in  land. 

§  268.  Same.     Alteration  of  contract.    Conspiracy. 


CHAPTER  XV. 

BUILDING  CONTRACTS  (CONTINUED).  STATUTORY  ORIGINAL 

CONTRACTS. 

A.  Statutory  Requirements  not  Essential  to  the  Validity  of  the 
Whole  Statutory  Original  Contract. 

§  269.  Provisions  imposing  a  penalty.  Payments,  in  general.  Statu- 
tory provision. 

§  270.     Same.     Scope  and  object  of  these  provisions. 

§  271.     Same.     Substantial  compliance  required.     Effect. 

§  272.  Same.  Contract  price  not  to  be  payable  in  advance  of  the 
work. 

§  273.  Same.  Contract  price  payable  in  instalments,  or  after  com- 
pletion. 

§  274.  Same.  Payment  of  twenty-five  per  cent  thirty-five  days  after 
completion. 

§  275.     Same.     The  object  of  this  provision. 

§  276.     Same.     General  rule. 

§  277.     Same.     Illustrations.     Sufficient  compliance. 

§  278.     Same.     What  not  substantial  compliance. 

§  279.     Same.     Provision  as  to  liens. 

§  2.80.     Same.     Payment  in  money. 

§  281.     Same.     Contractor's  bond.     Provision  unconstitutional. 

§  282.     Same.     Effect  of  giving  bond.     Common-law  obligation. 

§  283.     Same.     Previous  decisions  concerning  bond. 

§  284.  Provisions  avoiding  certain  clauses.  Impairment  of  liens. 
Statutory  provision. 

§  285.     Same.     Provision,  when  not  applicable. 


CHAPTER    XVI. 
BUILDING   CONTRACTS    (CONTINUED). 

B.  Statutory  Requirements  Essential  to  Validity  of  Contract. 
§  286.     Scope  of  discussion. 
§  287.     Statutory  provision. 

§  288.     What  not  essential  to  validity  of  contract. 
§  289.     Construction  of  provision. 


Xiv  CONTENTS. 

§  290.  Statutory  original  contract  must  be  entered  into  before  work 
is  commenced. 

§  291.  Same.     Estoppel  as  to  invalidity  of  contract. 

§  292.  The  statutory  original  contract  must  be  in  writing. 

§  293.  The  statutory  original  contract  must  be  subscribed. 

§  294.  Filing  contract. 

§  295.  The  duty  of  filing  the  contract. 

§  296.  Necessity  and  object  of  filing  contract. 

§  297.  Whole  contract  must  be  filed. 

§  298.  Same.     Reference  to  matters  dehors  the  contract. 

§  299.  Same.     Where  the  plans  and  specifications  are  referred   to. 

§  300.  Memorandum  of  contract.     Statutory  provision. 

§  301.  Same.     General  effect  of  provision. 

§  302.  Same.     Purpose  and  object. 

§  303.  Same.     What  not  required  in  memorandum. 

§  304.  Same.  Contract,  or  copy  thereof,  as  memorandum.  Gen- 
eral principles. 

§  305.  Same.     Names  of  all  the  parties  to  the  contract. 

§  306.  Same.     Description  of  the  property  to  be  affected  thereby. 

§  307.  Same.  Statement  of  the  general  character  of  the  work  to 
be  done. 

§  308.  Same.     Statement  of  work.     General  principles. 

§  309.  Same.     Reference  to  plans  and  specifications. 

§  310.  Same.     Reference  to  detail  drawings. 

§  311.  Same.     Payments. 

■§  312.  Time  of  filing  contract  or  memorandum. 

§  313.  Place  of  filing  contract  or  memorandum. 

§  314.  Conspiracy  as  to  contract  price. 


CHAPTER   XVII. 
BUILDING  CONTRACTS  (CONTINUED). 

C.   Effect  of  Validity  oe  Invalidity  of  Statutory  ObiginaIj 
Contract. 

§  315.     Effect  of  validity  of  contract.     Owner's  liability. 

§  316.     Same.     Valid  contract  as  notice. 

§  317.     Same.     Abandonment  of  contract. 

§  318.     Same.     How  far  subclaimants  are  bound  by  other  terms  of 

valid  original  contract. 
§319.     Effect  of   invalidity  of   statutory  original    contract.      Gener- 
ally. 
§  320.     Same.     Classes  affected  by  invalidity  of  contract. 
§  321.     Same.    Effect  as  between  parties  to  the  contract. 
§  322.     Same.     Contractor's  lien  on  express  or  implied  contract. 
§  323.     Same.     To  what  extent  contract  may   be   looked  to  by   the 

parties. 


CONTENTS.  XV 

§  324.     Same.     Lien  claimants,  other  than  original  contractor. 
§  325.     Same.     How  far  effective. 


CHAPTER  XVIII. 

BUILDING  CONTRACTS   (CONTINUED).     EXTINCTION  OF  CON- 
TRACT. 

§  326.  Alteration  of  original  contract.     Statutory  provisions. 

§  327.  Same.     To  what  original  contracts  provisions  applicable. 

§  328.  Same.     Statutory  original  contract. 

§  329.  Same.     Alterations,  how  evidenced.     Effect. 

§  330.  Same.     Extending  credit. 

§  331.  Same.     Payments. 

§  332.  Same.     Power  of  architect  to  alter  contract. 

§  333.  Novation. 

§  334.  Performance  of  contract.     How  considered  herein. 

§  335.  Same.     Original  contract  valid. 

§  336.  Same.     Original  contract  void. 

§  337.  Same.     Time  of  performance. 

§  338.  Same.     General  rule.     Conditions. 

§  339.  Same.     Excuses  for  non-performance. 

§  340.  Same.     Performance  of  warranty. 

§  341.  Same.     "  Trifling  imperfection." 

§  342.  Same.     Substantial  performance  generally  required. 

§  343.  Same.     General  principles. 

§  344.  Same.     Slight  difference  in  value. 

§  345.  Same.     Conveniences. 

§  346.  Same.    Erection  of  structure  in  part  only. 

§  347.  Same.     "  Completion  "  of  mining  claim. 

§  348.  Statutory  equivalents  of  completion  for  the  purpose  of  filing 
claims  of  lien. 

§  349.  Same.     Statutory  provisions. 

§  350.  Same.  Occupation  and  use.  Scope  and  object  of  statutory 
provisions. 

§  351.  Same.     Character  of  occupation  or  use. 

§  352.  Same.     Void  contract. 

§  353.  Same.     Acceptance.     Waiver. 

§  354.  Same.  Cessation  from  labor  for  thirty  days.  Statutory  pro- 
vision. 

§  355.  Same.     Scope  of  provision. 

§  356.  Same.     Character  of  cessation. 

§  357.  Same.  As  affected  by  validity  or  invalidity  of  original  con- 
tract. 

§  358.  Abandonment  of  original  contract. 

§  359.  Same.     Owner's  liability. 

§  360.  Same.     Justification  for  abandonment. 


XVI  CONTENTS. 

CHAPTER  XIX. 

CLAIM  OF  LIEN.  NATURE,  NECESSITY,  AND  PURPOSE. 

§  361.  Resemblance  between  statutory  provisions  as  to  claim  of  lien. 

§  362.  Nature  of  claim  of  lien. 

§  363.  Statutory  provision.     California. 

§  364.  When  claim  of  lien  is  necessary. 

§  365.  Purpose  of  claim  of  lien. 

§  366.  The  necessity  of  one  or  more  claims  of  lien. 

§  367.  Same.     Persons  joining  in  same  claim  of  lien. 

§  368.  Same.     Several  objects  and  pieces  of  property. 

§  369.  Same.     Various  items  of  labor  or  materials. 

CHAPTER    XX. 

CLAIM  OF  LIEN   (CONTINUED).     CONTENTS  OF  CLAIM. 

§  370.  General  statement  as  to  contents  of  claim  of  lien. 

§  371.  Construction  of  claims.     General  principles. 

§  372.  Same.     General  rule  for  determination  of  sufficiency  of  claim. 

§  373.  Same.     What  generally  required. 

§  374.  Same-.     Unnecessary  statements. 

§  375.  Statement  of  demand,  after  deducting  credits  and  offsets. 

§  376.  Same.     Object  of  provision  as  to  demand. 

§  377.  Same.    Commingling  lienable  and  non-lienable  items. 

§  378.  Same.     Demands  against  two  or  more  buildings. 

§  379.  Names  required  to  be  stated  in  claim.     In  general. 

§  380.  Same.     Name  of  owner  or  reputed  owner. 

§  381.  Same.     Employer.     Purchaser. 

§  382.  Same.     Under  void  statutory  original  contract. 

§  383.  Same.     Inferential  statements. 

§  384.  Same.     "  Causing  "  improvement. 

§  385.  Same.     Name  of  agent. 

§  386.  Same.     Two  or  more  employers  or  purchasers. 

§  387.  Terms,  time  given,  and  conditions  of  contract.     In    general. 

§  388.  Same.     Object  and  construction  of  provision. 

§  389.  Same.     General  rules. 

§  390.  Same.     Showing  contractual  indebtedness. 

§  391.  Same.     Setting  out  terms  of  original  contract.    • 

§  392.  Same.     Reference  to  other  papers. 

§  393.  Same.     Express  and  implied  agreement  as  to  price. 

§  394.  Same.     Items  of  account. 

§  395.  Same.     Nature  of  labor. 

§  396.  Same.     Dates. 

§  397.  Same.     "  Time  given.". 

^^  398.  Same.     "  Cash." 

§  399.  Description  of  property.     In  general. 


CONTENTS.  XVI I 

§  400.  Same.     Bona  fide  purchasers. 

§  401.  Same.     Object  of  provision. 

§  402.  Same.     General  rule. 

§  403.  Same.     Special  applications.     False  calls. 

§  404.  Same.     Property  identified  by  name  or  exclusive    character. 

§  405.  Same.     Description  as  including  too  much  or  too  little. 

§  406.  Same.     Two  or  more  descriptions.     Statutory  provision. 

§  407.  Same.     Application  of  provision  as  to  demands  against  sepa- 
rate  buildings. 

§  408.  Claim  of  charge. 

§  409.  Signature. 

§  410.  Verification. 

§  411.  Uncertainty  in  claim. 

§  4i2.  Mistake  and  error  in  claim. 

§  413.  Same.     Unnecessary  statements. 

§  414.  Same.     Other  illustrations. 

§  415.  Amendment  of  claim. 


CHAPTER  XXI. 

CLAIM   OF  LTEN    (CONTINUED).     FILING   CLAIM. 

§  416.  Filing  claim.     In  general. 

§  417.  Statutory  provisions. 

§  418.  Purpose  of  provision  requiring  claims  to  be  filed  within  a 

certain  time. 

§  419.  Same.     In  case  of  void  contract. 

§  420.  Place  of  filing  claim  for  record. 

§421.  Original  contract  void.     Necessity  of  filing  claim. 

§  422.  Time  of  filing  claim.     In  general. 

§  423.  Same.     Computation  of  time. 

§  424.  Time  of  filing,  when  r.ot  fixed  by  statute. 

§  42.5.  Notice  of  completion  or  cessation  of  work.    Statutory  provis- 
ion. 

§  426.  Same.     Purpose  and  scope  of  provision. 

§  427.  Same.     Failure  of  owner  to  file  notice. 

§  428.  Same.     In  case  of  structures. 

§  429.  Same.     General  rule. 

§  430.  Time  of  filing  claim.     Certificate  of  architect. 

§431.  Same.     Substantial  or  actual  completion. 

§  432.  Same.     Abandonment  of  the  work. 

§  433.  Same.     Thirty  days'  cessation  from  labor. 

§  434.  Same.     Agreements  affecting  time  of  filing  claims.      Giving 

credit. 

§  435.  Same.     Void  contract. 

§  436.  Same.     Mines  and  mining  claims. 

§  437.  Same.     Grading,  etc. 
Mech.  Liens  —  B 


XViii  CONTENTS. 

CHAPTER  XXII. 

LIMITATIONS  ON  LIENS.     EXTENT  OF  LIENS. 

§  438.  Territorial  or  "  property  "  extent  of  lien. 

§  439.  Same.     Statutory  provision. 

§  440.  Same.     Space  for  convenient  use  and  occupation. 

§  441.  Same.     Structures.     Illustrations. 

§  442.  Same.     Land  affected  when  building  is  destroyed  or  removed. 

§  443.  Same.     Mines  and  mining  claims. 

§  444.  Same.     Several  mining  claims. 

§  445.  Same.     Mining  machinery. 

§  446.  Same.     Grading  and  other  work.     Lot. 

§  447.  Property  viewed  as  an  entirety. 

§  448.  Same.     Distinct  objects  on  one  parcel  of  land. 

§  449.  Same.     Railroads,  canals,  gas-works   and  water-works. 

§  450.  Same.     Lien  on  building  alone.    False  representations  as  to 

ownership. 

§  451.  Same.     Mining  claims  and  mines. 

§  452.  The  lien  as  limited  by  contract. 

§  453.  Same.     Statutory  provision. 

§  454.  Same.     General  interpretation  of  provision. 

§  455.  Same.     Contract  as  notice. 

§  456.  Same.     Price.     Value. 

§  457.  Same.     Contract  of  subcontractor  and  contractor. 

§  458.  Same.     Claimants  under  subcontractors. 


CHAPTER    XXIII. 

LIMITATIONS    ON    LIENS     (CONTINUED).       ESTATES      AND 
INTERESTS   SUBJECT   TO  LIENS. 

T.    By  Coxtr.\ct. 

§  459.  Plan  of  discussion. 

§  460.  Estates  or  interests  bound  by  contractual  relation  with  the 

holder  thereof.     Statutory  provision. 

§  461.  Same.     General  rule. 

§  462.  Same.     Fee  or  legal  title  subject  to  lien. 

§  463.  Same.     Vendee  being  in  possession. 

§  464.  Same.     Lessee  being  in  possession. 

§  465.  Same.     Title  being  held  in  trust. 

§  466.  Same.     Interest  of  vendee  in  possession  bound. 

§  467.  Same.     Interest  of  lessee  bound. 

§  468.  Same.     Homestead  bound. 


CONTENTS.  XIX 

CHAPTER    XXIV. 

LIMITATIONS    ON    LIENS     (CONTINUED).     ESTATES    AND 
INTERESTS   SUBJECT   TO  LIENS. 

II.    By  Estoppel.     Notice  of  Non-responsibility. 

§  469.     Estates  or  interests  bound  by  estoppel.     Scope  of  discussion. 

§  470.     Same.     The  general  principles  of  estoppel  in  pais. 

§  471.     Same.     Independently  of  statute. 

§  472.  Same.  General  rule  as  to  when  notice  of  non-responsibility 
must  be  given. 

§  473.     Same.     Notice  of  non-responsibility.     Statutory  provision. 

§  474.  Same.  Purpose  of  provision  as  to  notice  of  non-responsi- 
bility. 

§  475.     Same.     Notice  or  knowledge  of  improvement. 

§  476.     Same.     Notice  to  corporation  as  owner. 

§  477.     Same.     Lessee   in   possession   and  making   improvements. 

§  478.     Same.     Vendee   being  in   possession. 

§  479.     Same.     When  notice  not  required. 

§  480.  Same.  When  notice  not  required  in  case  of  mines  and  min- 
ing claims. 

§  481.  Same.  Notice  not  required  in  case  of  grading  and  other 
work  in  incorporated  cities. 

§  48:^.     Same.     Notice   not   required   in   case   of   prior   liens. 

§  483.  Same.  Effect  of  knowledge  of  claimant  of  lack  of  authority 
of   person  making  improvement. 

§  484.     Same.     Notice,  when   to  be   posted. 

§  485.     Same.     Notice,  how  posted.     Conspicuous  place. 


CHAPTER    XXV. 

LIMITATIONS    ON    LIENS    (CONTINUED).      PRIORITIES. 

§  486.  Scope  of  chapter. 

§  487.  Priorities    between    mechanics'    liens    and    other    estates    or 

interests,  or  other  classes  of  liens. 

§  488.  Same.     Statutory   statement   of   rule. 

§  489.  Same.     General   analysis  of  provision. 

§  490.  Same.     Grants   and   conveyances. 

§  491.  Same.     Doctrine   of  relation. 

§  492.  Same.     Lien   for  materials. 

§  493.  Same.     Contractors     and     subcontractors.      Void     contract. 

Homestead. 

§  494.  Same.     Parts  of  day. 

§495.  Same.     General   rule. 

§  496.  Same.     Mortgage  fur  purchase  price. 


XX  CONTENTS. 

§  497.  Same.     Mortgage  for  future  advances. 

§  498.  Same.     What  constitutes  "  further   advances." 

§  499.  Same.     Reformation  and  alteration  of  instruments. 

§5i0.  Same.  When  iien  claimants  may  attack  prior  encumbran- 
ces. 

§  501.  Same.     Garnishment   by   creditor. 

§  502.  Same.     Lien  on  two  or  more  buildings.     Statutory  provision.. 

§  503.  Same.  When  provision  as  to  two  or  more  buildings  appli- 
cable. 

§  504.  Priorities    inter    sese.     Statutory    provision. 

§  505.  Same.     Nature  of  provision. 

§  506.  Same.     Effect  of  constitution  on  statutory  provision. 

§  507.  Same.     Insufficient   proceeds.     Prorating. 


CHAPTER   XXVI. 

OWNER,    EMPLOYER,    OR    PERSON    CAUSING    IMPROVEMENT 
TO  BE  MADE. 

§  508.  Owner  and  employer,  or  purchaser.     Distinction. 

§  509.  Owner  and  reputed  owner. 

§  510.  General  rights  of  owner  and  employer.     Scope  of  discussion. 

§  511.  Same.     Rights  against  contractor.     Statutory  provision. 

§  512.  Same.     General  rule  as  to  non-payment  of  instalments. 

§  513.  Same.     Right  to  cancel  contract. 

§  514.  Same.     Right  of  owner  to  retain  fund. 

§  515.  Same.     Offsets   and   counterclaims.     Generally. 

§  516.  Same.     Offsets  and  counterclaims  against  different  payments. 

§  517.  Same.     Damages   for   delay   in   performance. 

§  518.  Same.     Completion  of  contract  by  owner. 

§  519.  Same.     Right  to  complete   construction  upon  abandonment. 

§  520.  Same.     Right  to  materials  upon  abandonment. 

§  521.  Same.     Rights  against  others. 

§  522.  Same.     Payments. 

§  523.  General  obligations  of  owner  and  employer.  Scope  of  dis- 
cussion. 

§  524.  Same.     Duty  to  file  statutory  original  contract. 

§  525.  Same.     Duty  to  withhold   payments. 

§  526.  Same.  Liability  of  owner  on  breach  or  abandonment.  Statu- 
tory provision. 

§  527.  Same.     Application  of  statutory  provision. 

§  528.  Same.     Void  contract  abandoned. 

§  529.  Same.     Non-statutory  original  contract. 

§  530.  Same.     Destruction  of  building. 

§  531.  Same.     Liability  of  fee  for  improvements  by  trespasser. 

§532.  Same.     Application  of' payments  by  subclaimants. 


533. 

Same. 

534. 

Same. 

ing 

535. 

Same. 

536. 

Same. 

537. 

Same. 

538. 

Same. 

539. 

Same. 

540. 

Same. 

541. 

Same. 

542. 

me 
Same. 

543. 

Same. 

544. 

Same. 

545. 

Same. 

CONTENTS.  XXI 

Payment  of  orders  of  contractor.    Splitting  demands. 

Orders  on  ov/ner's  mortgagee.     Destruction  of  build- 
Voluntary  payment  of  contractor's  debts. 

Guaranty    not   a    prohibited    payment. 

Owner  as  stakeholder. 

Liability   for    costs    and    interest.     Interpleader. 

Personal   liability. 

Liability  of  owner  or  employer  under  valid  contract. 

Payment  to  subclaimants.   Valid  contract.    Last  pay- 
it. 

Liability   of  owner  under  void   contract. 

Void  contract.     Penal  provision. 

Statute  measure  of  liability  under  void  contract. 

Personal   liability  to   subclaimants  under  void   con- 
tract. 
§  546.     Same.     False  representations  by  owner  as  to  completion  of 
building. 


CHAPTER    XXVII. 

OWNER,  EMPLOYER,  OR  PERSON  CAUSING  IMPROVEMENT  TO 
BE  MADE  (CONTINUED).  LIABILITY  AS  FIXED  BY  NOTICE. 

§  547.  Scope  of  discussion. 

§  548.  Notice   to   owner   or   employer.     History. 

§  549.  Statutory    provision. 

§  550.  Notice  to  owner,  and  claim  of  lien.  Distinction  and  pur- 
poses. 

§  551.  Notice  to  owner  creating  personal  obligation. 

§  552.  Notice  to   owner.     Garnishment. 

§  553.  Provision,   when  applicable. 

§  554.  General  rights  upon  service  of  notice. 

§  555.  Same.     Early   statutes. 

§  556.  Same.     Under  valid   contract,   generally. 

§  557.  Same.     Claim  of  lien  as  equivalent  of  notice  to  owner. 

§  558.  Same.     Valid   statutory   original   contract. 

§  559.  Same.     Void  statutory  original   contract. 

§  560.  Same.     Non-statutory  original  contract. 

§  561.  Same.  Effect  of  notice  on  payments  already  made  or  as- 
signed. 

§  562.  Same.     Payment  by  note. 

§  563.  Same.     Relation  to  provision  as  to  premature  payments. 

§  564.  Same.     Service  of  notice  on   public  trustees. 

§  565.  Time   of  giving  notice. 

§  566.  Joint  contractors.     Apportionment. 

§  567.  Action  on  notice. 


Xxii  CONTENTS. 

§  568.  Form  and  contents  of  notice.     Construction. 

§  569.  Same.     Effect  of  several   notices  served. 

§  570.  Same.     Statutory  requirements  of  notice. 

§  571.  Same.     Sufficiency  of  notice. 


CHAPTER    XXVIII. 

AGENCY. 

§  572.  General  principles.     Actual   and  ostensible  agency. 

§  573.  Agency  by  statutory  estoppel. 

§  574.  Same.     Purpose. 

§  575.  Same.     Statutory  provision. 

§  576.  Same.     When  contract  is  void. 

§  577.  Person  in  possession  as  agent  of  owner. 

§  578.  Same.     Person  working  mine. 

§  579.  Architect  as  agent. 

§  580.  Presumption  of  agency  raised. 

§  581.  Undue    extension   to    statutory    agency    of    rules    applicable 

only  to  common-law  agency. 

§  582.  Personal   liability  of  agent. 

§  583.  Agency  to  receive  notice  of  claims  of  subclaimants. 

§  584.  Principal  bound  by  notice  to  agent. 


CHAPTER   XXIX. 

THIRD  PERSONS. 

§  585.  Scope  of  discussion. 

§  586.  Purchasers  and  other  lien-holders. 

§  587.  Same.     Defective  claim  of  lien  as  notice  to  bona  fide  third 

parties. 

§  588.  Assignees.     Assignment  of  inchoate  right  to   lien. 

§  589.  Same.     Formalities  of  assignment. 

§  590.  Same.     Unaccepted  order. 

§591.  Same.     Assignment  of  debt  necessary. 

§  592.  Same.     Separate  assignments  of  debt  and  security. 

§  593.  Same.     Splitting  demands. 

§  594.  Same.     Notice  of  assignment. 

§  595.  Same.     General  rights  of  assignee. 

§  596.  Same.     Conditional   acceptance. 

§  597.  Same.     Defenses  arising  subsequent  to  assignment. 

§  598.  Same.     Assignment  to   surety   on   contractor's   bond. 

§  599.  Same.     Insolvency.     Bankruptcy. 

§  600.  Same.     Premature  payments. 

§601.  General  creditors.     Claimants  losing  lien. 


CONTENTS.  XXiil 

§  602.     Same.     Attachment  or  process.     Materials. 

§  603.     Same.     Garnishment. 

§  604.    Mortgagees.     Obligation  to  advance  moneys  for  construction. 


CHAPTEE   XXX. 

THIRD    PERSONS    (CONTINUED).     SURETIES. 

8  605.  Scope  of  chapter. 

§  606.  Statutory  requirement  of  contractor's  bond. 

§  607.  Same.     Application  of  provision. 

§  608.  Statutory  bond.     Formalities. 

§  609.  Same.     Statutory  bond  void. 

§  610.  Same.     Contract  void.     Bond  valid. 

§  611.  Same.     Liability  on  statutory  bond. 

§  612.  Same.     Statutory  bond,  when  enforceable  as  a  common-law 

obligation. 

§  613.  Common-law  bonds.     Formalities. 

8  614.  General  rule  of  surety's  liability. 

§  615.  Original  contract  as  basis  of  liability. 

§  616.  Auditing  accounts,  as  provided  in  contract. 

§  617.  Construction  of  bond. 

§  618.  Surety's  rights.     Notice. 

§  619.  Surety  as  lien  claimant. 

§  620.  Surety  under  legal  obligation  not  to  foreclose  lien. 

§  621.  Obligee  of  bond  destroying  security  of  surety. 

§  622.  Premature  payments.     Generally. 

§  623.  Same.     Intermediate  instalments. 

§  624.  Same.     Final  instalment. 

§  625.  Liability  of  sureties.     Damages. 

§  626.  Bond  of  contractor  on  public  work. 


CHAPTER    XXXI. 

WAIVER,  FORFEITURE,    AND    RELEASE    OF    LIEN. 

§  627.  Waiver  of  lien.     General  principle. 

§  628.  Same.     Statutory    provision. 

§  629.  Same.     Knowledge  of  lack  of  authority  of  employer. 

§  630.  Same.     Taking   additional    security. 

§  631.  Same.     Entry  of  judgment. 

§  632.  Forfeiture  by  false  or  excessive  claim  or  notice. 

§  633.  Same.     Illustrations. 

§  634.  Release  of  lien. 

§  635.  Same.     Composition    agreement.     Definition. 

§  636.  Same.     Agreement   to  assign    claims   to   owner. 

§  637.  Same.     Effect  of  composition  agreement. 


PART  11. 

PLEADING    AND    PROCEDURE. 

CHAPTER    XXXII. 

REMEDIES. 

§  638.  Cumulative  remedies.     Personal  action. 

§  639  Same.     Election,  when  several  suits  commenced. 

§  640.  Same.     Nature  of  action  to  foreclose  lien. 

§  641.  Same.     Actions  by  original  contractor. 

§  642.  Same.     Actions   by   subclaimants. 

§  643.  Same.     Actions  by  owner's  laborers  and  material-men. 

§  644.  Same.     Actions  by  owner. 

§  645.  Provisional  remedies.     Statutory  provision. 

§  646.  Same.     Attachment. 

§  647.  Same.     Materials   exempt  from  attachment. 

§  648.  Same.     Injunction. 

CHAPTER    XXXIII. 

TIME,  PLACE,  AND  MANNER  OF  COMMENCING  ACTIONS  TO 
FORECLOSE   LIEN. 

§  649.  Time  of  commencing  actions  to  foreclose. 

§  650.  Same.     Action  to  foreclose  lien  upon  the  fund. 

§  651.  Place  of  commencing  action  to  foreclose.     Generally. 

§  652.  Same.     Statutory  provision. 

§  653.  Same.     Jurisdiction   of   superior   court. 

§  654.  Same.     Amount  less  than  jurisdictional   limit. 

§  655.  Same.     Foreclosure   of   lien   in   Federal    courts. 

§  656.  Manner  of  commencing  actions  to  foreclose. 

§  657.  Same.     Summons. 

§  658.  Same.     Lis  pendens. 


CHAPTER    XXXIV. 

PARTIES. 

659.  Parties  plaintiff.     Statutory  provision. 

:  660.  Same.     Object  of  provision. 

661.  Same.     Raising  objection. 

662.  Parties  defendant.     Generally. 

(xxiv) 


CONTENTS.  XXV 

§  663.  Same.  Owner. 

§  664.  Same.  Employers.     Copartnerships. 

§  665.  Same.  Contractor. 

§  666.  Same.  Subcontractor. 

§  667.  Same.  Lien  claimants. 

§  668.  Same.  Holders  of  prior  interests  and  liens. 

§  669.  Same.  Interests  pendente  lite. 


CHAPTER    XXXV. 

COMPLAINT. 

§  670.  Complaint.     In  general. 

§  671.  Stating  cause  of  action. 

§  672.  General  rules  of  pleading  contract. 

§  673.  Same.     Common  counts. 

§  674.  Same.     Technical  defects  cured  by  acts  of  the  parties. 

§  675.  Same.     Express  contract. 

§  676.  Same.     Conditions  precedent. 

§  677.  Same.     Completion  of  building. 

S  678.  Same.     Certificate  of  architect. 

§  679.  Same.     Prevention  of  performance. 

§  680.  Same.     Debt   due. 

§  681.  Same.     Non-payment   of  indebtedness  to   plaintiff. 

§  682. .  Same.     Premature  payment  to  contractor  by  owner. 

§  683.  Notice  to  owner. 

§  684.  Same.     Indebtedness  due  contractor  from  owner  at  time  of 

notice. 

§  685.  Same.     Complaint  by   subcontractor's   material-man. 

§  686.  Same.     Notice  to  contractor.     Action  against  fund. 

§  687.  Request  of  owner.     Subclaimant. 

§  688.  Contract  alleged  presumed  to  be  non-statutory. 

§  689.  Void  contract. 

§  690.  Same.     Agreed    price.     Value. 

§  691.  Same.     Request  of  owner. 

§  692.  Ownership. 

§  693.  Knowledge  of  improvement  by  owner. 

§  694.  Notice   of   non-responsibility. 

§  695.  Agency.     Authority   of   person   causing   improvement   to   be 

made. 

§  696.  Same.     Mining  claim. 

§  697.  Same.     Contractor  as  agent  of  owner. 

§  698.  Same.     Allegations    to    bind    contractor. 

§  699.  Materials. 

§  700.  Same.     Defect  in  comi)laint  waived. 

§  701.  Same.     Materials    furnished.     Dates. 

§  702.  Employment.     Death  of  owner. 


XXvi  CONTENTS. 

§  703.  Nature  of  labor. 

§  704.  Same.     Grading   and   other  work. 

§  705.  Object  of  labor.     Well. 

§  706.  Claim  of  lien.     Time  of  filing. 

S  707.  Same.     Statutorj'   completion   for   purpose  of  filing. 

§  708.  Same.     Alleging  contents  of  claim.     Generally. 

§  709.  Same.     Name   of   owner. 

§  710.  Same.  Description  of  property  to  be  charged  with  the 
lien. 

§  711.  Same.     Claim  of  lien  as  exhibit  to  complaint. 

§  712.  Same.     Terms,  time  given,  and  conditions  of  contract. 

§  713.  Same.  Variance  between  claim  as  an  exhibit  and  allega- 
tions  of  complaint. 

§  714.  Same.     Unnecessary  statements  in  claim  as  an  exhibit. 

§  715.  Other   interests.     For   what   purpose   alleged. 

§  716.  Same.     Alleging  no  other  claim  upon  fond. 

§  717.  Description   of   property. 

§  718.  Same.     Land  for  convenient  use  and  occupation. 

§  719.  Same.     Description  of  whole  or  part  of  building. 

§  720.  Same.     Description  in  claim  of  lien   referred  to. 

§  721.  Damages. 

§  722.  Verification  of  complaint. 

§  723.  Joinder  of  causes  of  action  in  complaint. 

§  724.  Same.     Designating   causes   of  action   separately. 

§  725.  Same.     Reference  from  one  cause  of  action  to  another. 

§  726.  Same.     Actions   that   may   be   united   in   one   complaint. 

§  727.  Same.     Objections,   how   raised. 


CHAPTER    XXXVI. 
DEMURRER. 

§  728.     Demurrer.     Generally. 

§  729.     General   demurrer. 

§  730.  Same.  Filing  claim  of  lien.  Time  of  completion  of  build- 
ing. 

§  731.     Same.     Cessation  from  work. 

§  732.  Same.  Claim  of  lien  not  setting  forth  plans  and  specifica- 
tions. 

§  733.  Same.  Variance  between  claim  as  exhibit  and  body  of  com- 
plaint. 

§  734.     Special  demurrer.     Misjoinder  of  parties. 

§  735.  Same.  Ambiguity  and  uncertainty.  Conflict  between  claim 
as  exhibit  and  body  of  complaint. 

§  786.  Same.  Conflict.  Bond  as  exhibit  and  allegations  of  com- 
plaint. 

§  737.     Same.     Conclusions  of  law. 


CONTENTS.  XXVn 

CHAPTER    XXXVII. 

ANSWER,  AND  OTHER  PLEADINGS. 

§  738.     Answer.     In  general. 

§  739.     Same.  General  denial. 

§  740.     Same.  Denials  of  conclusions  of  law. 

§  741.     Same.  Negative  pregnant. 

§  742.     Same.  Denials  on  information  and  belief. 

§  743.     Same.  Exception  to  rule. 

§  744.     Same.  Evasive  denials. 

§  745.     Same.  Deficiencies  of  complaint  cured  by  answer. 

§  746.     Same.  Special  defenses. 

§  747.     Same.  Neglect  of  contractor  to  supply  materials    and    pro- 
ceed with  work. 

§  748.     Same.  Abandonment. 

§  749.     Same.  Payments  made  by  owner. 

§  750.     Same.  Void  contract  as  defense. 

§  751.     Same.  Void  contract  no  defense  in  personam. 

§  752.     Same.  Mechanic's  lien  as  defense  to  mortgage  foreclosure. 

§  753.     Same.  Counterclaim.     Payments. 

§  754.     Same.  Judgment  and  costs  in  action  against  agent. 

§  755.     Same.  Orders  paid. 

§  756.     Same.  Damages. 

§  757.     Same.  Future  repairs. 

§  758.     Same.  Damages  for  delay. 

§  759.     Cross-complaint. 

§  760.     Same.  Setting  up  mechanic's  lien  in  mortgage  foreclosure. 

§  761.     Same.  Damages. 

§  762.     Same.  Payments. 

§  763.     Supplemental  answer.     Decree  of  foreclosure  of  mortgage. 


CHAPTER    XXXVIII. 

EVIDENCE. 

§  764.  Scope  of  chapter. 

§  765.  General  rule  as  to  exclusion  of  evidence. 

§  766.  Admissions. 

§  767.  Attorneys'  fees. 

§  768.  Description  of  property. 

§  769.  Extent  of  land  for  convenient  use  and  occupation. 

§  770.  Books  of  account. 

§  771.  Claimant  as  witness  against  estate. 

§  772.  Fixtures.     Intention  of  parties. 

§  773.  Judicial  notice. 

§  774.  Parol  evidence.     Assignment. 


XXviii  CONTENTS. 

§  775.     Same.     Parol  evidence  to  explain  meaning  of  words. 

§  776.     Notice.     Probate  proceedings. 

§  777.     Questions  assuming  matter  in  dispute. 

§  778.     Receipt. 

§  779.     Agency. 

§  780.     Same.     Special  statutory  provision.     Presumption. 

§  781.     Same.     Overcoming  presumption.     Knowledge. 

§  782.     Same.     Knowledge  of  lack  of  agency. 

§  783.     Same.     Knowledge  that  employer  incurred    indebtedness  on 

his  own  account. 
§  784.     Same.     Proof  of  knowledge  of  owner. 
§  785.     Burden  of  proof.     Generally. 
§  786.     Same.     Priorities. 
§  787.     Same.     Time  of  filing  claim  of  lien. 
§  788.     Same.     Cessation  from  work. 
§  789.     Certificate  as  evidence. 
§  790.     Same.     Conclusiveness  of  cei'tificate. 

§  791.     Same.     Certificate    as    evidence    of    time    of    completion    of 
building. 

§  792.     Completion  of  building. 

§  793.     Same.     Statutory  evidence. 

§  794.     Non-completion  of  building. 

§  795.     Claim  of  lien.     As  evidence  of  lien. 

§  796.     Same.     Objections  to  contents  of  claim. 

§  797.     Extra  work. 

§  798.     Valid  contract. 

§  799.     Same.     Parol  modifications  of  written  contract. 

§  800.     Same.     Contract  admissible  to  show  character    of    building. 

§  801.     Same.     Contract  as  evidence  with  reference  to  time  of  per- 
formance of  labor. 

§  802.     Inadmissibility  of  indefinite  contract. 

§  803.     Parol  evidence  in  aid  of  false  reference. 

§  804.     Parol  evidence  not  admissible  for  construction  of  contract. 

§  805.     Same.     Rule  not  applicable  to  mere  memorandum. 

§  806.     Same.     Performance  of  contract. 

§  807.     Void  original  contract  admissible  for  what  purpose. 

§  808.     Same.     Invalidity,  how  shown. 

§  809.     Mai  performance  of  work. 

§  810.     Liquidated  damages. 

§  811.     Damages.      Circumstances    surrounding     execution    of    con- 
tract.    Defendant  in  default. 

§  812.     Presumption  of    knowledge  by    subclaimants    of    valid    con- 
tract. 

§  813.     Evidence  of  benefit  conferred. 

§  814.     Acceptance  of  performance. 

§  815.     Evidence  of  liability  in  case  of  failure  to  perform,  or  aban- 
donment. 


CONTENTS.  XXIX 

§  816.  Estoppel  as  evidence.     General  rule. 

§  817.  Same.     Judgment. 

§  818.  Same.     Owner  estopped. 

§  819.  Same.     Owner  estopped  by  acts  of  reputed  owner. 

§  820.  Same.     Surety  not  estopped  to  foreclose  lien. 

§  821.  Same.     Estoppel  of  contractors  on  bond. 

§  822.  Forfeiture  and  fraud. 

§  823.  Same.     Rescission  as  evidence  of  fraud. 

§  824.  Same.     Fraudulent  representations. 

§  825.  Use  of  materials  in  building. 

§  826.  Money  advanced. 

§  827.  Questions  of  fact. 

§  828.  Questions  of  law. 

§  829.  Value.  Valid  contract  as  evidence  thereof.  Action  on  im- 
plied contract. 

§  830.     Same.     Common  counts. 

§  831.  Same.  Contract  as  evidence  of  extra  work.  Express  con- 
tract. 

§  832.     Same.     Void  contract. 

§  833.     Same.     Market  price.     Usual  price. 

§  834.     Same.     Other  evidence  of  value. 


CHAPTER    XXXIX. 

VARIANCES. 

§  835.  Variances.     Generally. 

§  836.  Claim  of  lien.     Pleadings.     Proof.     Generally. 

§  837.  Claim  of  lien.     Pleadings.     Material  variances. 

§  838.  Same.     Persons  contracting.     Husband  and  wife. 

§  839.  Same.     Immaterial  variances. 

§  S40.  Same.     Valid,  void  contract.     Owner  purchasing  directly. 

§  841.  Same.     Description  of  property. 

§  842.  Same.     Payments. 

§  843.  Claim  of  lien  and  proof.     Generally. 

§  844.  Same.     Material  variances. 

§  845.  Same.     Time  of  payment. 

§  846.  Same.     Nature  of  labor. 

§  847.  Same.     Deducting  credits  and  offsets.     Amount  paid. 

§  848.  Same.     Immaterial  variances. 

§  849.  Same.     Person  contracting. 

§850.  Same.     Contract.     Date  of  contract. 

§851.  Same.     Implied  contract.     Express  contract. 

§  852.  Same.     Nature  of  work. 

§  853.  Pleading  and  proof.     Generally. 

§  854.     Same.     Material  variances.     Contract. 


XXX  CONTENTS. 

§  855.  Same.  Valid,  void  contract.    Contracting  directly  with  owner 

or  agent. 

§  856.  Same.  Indefinite    contract. 

§  857.  Same.  Person  contracting. 

§  858.  Same.  Nature  of  work. 

§  859.  Same.  Fund.     Contractual  indebtedness. 

§  860.  Same.  Immaterial  variances. 

§  861.  Same.  Time  of  payment. 

§  862.  Same.  Subclaimant.     Owner's  employee. 

§  863.  Same.  Bond.     Signed  by  principals.     Unsigned. 


CHAPTER    XL. 

TRIAL    AND    PRACTICE. 

§  864.  Practice.     In  general. 

§  865.  Amendment.     Express  and  implied  contract. 

§  866.  Same.     Modification  of  contract. 

§  867.  Same.     Description  of  property. 

§  868.  Same.     Relation  of  amendment  to  time  of  commencing  action. 

§  869.  Consolidation  of  actions. 

§  870.  Same.     Rights  of  claimants  against  one  another. 

§  871.  Deposit  of  money  in  court. 

§  872.  Same.     Payment  of  balance  of  fund. 

§  873.  Intervention.     Effect  of. 

§  874.  Same.     Right  to  intervene. 

§  875.  Jury  trial. 

§  876.  Same.     Verdict.     Setting  aside  verdict. 

§  877.  New  trial. 

§  878.  Nonsuit.     When  sustained  upon  appeal. 

§  879.  Same.     When  not  granted. 

§  880.  Same.     Statute  of  limitations. 

§  881.  Same.     Time  of  filing  claim. 

§  882.  Same.     Excessive  claim.     Forfeiture. 

§  883.  Same.     Admission  in  answer.     Contract. 

§  884.  Same.     Common  counts.     Express  contract. 


CHAPTER    XLI. 

FINDINGS. 

§  8Sr;.  Findings.     Scope  of  chapter. 

§  886.  Issues  to  be  found  up"on. 

§  887.  Finding  to  cover  entire  issue. 

§  888.  Same.     Defective  findings. 


CONTENTS.  XXXI 

§  889.  Ultimate  facts  to  be  found. 

§  890.  Immaterial  issues. 

§  891.  Same.     Knowledge  of  owner.     Notice  of  non-responsibility. 

§  892.  Segregating  items  of  contract  price. 

§  893.  Contradictory  findings. 

§  894.  Findings  in  consolidated  action. 

§  895.  Findings  of  fact  and  conclusions  of  law. 

§  896.  Same.     Void  contract. 

§  897.  Findings  sufficient  to  support  judgment. 

§  898.  Agency. 

§  899.  Same.     Insufficient  finding. 

§  900.  Same.     Request  of  owner. 

§  901.  Same.     Void  contract. 

§  902.  When  findings  may  not  be  attacked. 


CHAPTER  XLII. 

DECEEE. 

§  903.  General  nature  of  decree  foreclosing  liens. 

§  904.  Effect  of  decree  on  third  persons. 

§  90-').  Consolidated  action. 

§  906.  Kind  of  money  in  which  judgment  is  to  be  satisfied. 

§  907.  Interest. 

§  908.  Same.     Contractor. 

§  909.  Same.     Unliquidated  demands. 

§  910.  Same.     Interest  of  subcontractor's  claimants,  charge  against 

subcontractor. 

§  911.  Same.     Valid  contract.      Payment    of    fund     into    court     by 

owner. 

§  912.  Default.     Modification  of  judgment. 

§  913.  Default  judgment  against  owner. 

§  914.  Personal  judgment.     When  not  required. 

§  915.  Same.     When  obtained. 

§  916.  Same.     Purchaser  of  property  assuming  debt. 

§  917.  Same.     Notice  to  owner  to  withhold  payments. 

§  918.  Same.     Subclaimant  against  contractor.     Default. 

§  919.  Same.     When  not  given. 

§  920.  Same.     Death  of  owner.     Recovery  against  estate. 

§  921.  Same.     Jurisdiction    of    superior    court    to    render    personal 

judgment  in  suit  to  foreclose  lien. 

§  922.  Deficiency  judgment. 

§  923.  Same.     Notice  to  owner  to  withhold  payments. 

§  924.  Same.     Judgment  for  gross  amount. 

!;  925.  Same.     Form  of  judgment. 

§  926.  Prior  mortgage.     Decree  of  sale. 


XXxii  CONTENTS. 

§  927.  Interests  in  land.     When  can  be  ordered  sold. 

§  928.  Recitals  in  decree.     Foreclosure  of  interest. 

§  929.  Same.     Ownership.     Knowledge. 

§  930.  Extent  of  lien.     Statutory  provision. 

§  931.  Same.     Necessity  of  designating  property  to  be  sold. 

§  932.  Same.     Effect  of  failure  to  define  extent  of  land. 

§  933.  Same.     Order  directing  sale  of  entire  building. 

§  934.  Same.    Land  necessary  for  convenient  use  and  occupation. 


CHAPTER   XLIII. 

COSTS  AND  ATTORNEYS'  FEES. 

935.  Costs  and  attorneys'  fees.     Statutory  provision. 

936.  Costs.     Preparing,  filing,  and  recording  claim  of  lien. 

937.  Same.     Recovery  by  owner. 

938.  Same.     Recovery  of  costs    against   owner.     Prolonging    liti- 

gation. 

939.  Same.     Owner  may  set  off  costs  and    interest    against    con- 

tractor when. 

940.  Attorneys'  fees.     Unconstitutionality  of  provision. 

( 941.     Same.     Attorneys'  fees  not  allowed,  except  on  foreclosure 

of  liens  on  property. 
942.     Same.     Nature  of  attorneys'  fees  allowed,  and  their  relation 

to  costs. 
( 943.     Same.     Measure  of  attorneys'  fees. 
I  944.     Same.     Relation  of  legal  services  to  action. 
!  945.     Same.     Agreement  as  to  fees. 
!  946.     Same.     Lower     court    fixing    attorneys'     fees     in    supreme 

court. 
i  947.     Same.     When  owner  not  liable  for  attorneys'  fees. 


CHAPTER    XLIV. 

SALE    AND    REDEMPTION. 

§  948.  Sale.     In  general. 

§  949.  Same.     Manner  of  executing  judgment. 

§  950.  Same.     "  Writ  "  not  an  "  execution." 

§  951.  Same.     Time  of  sale. 

§  952.  Same.     Application  of  proceeds  to  junior  executions. 

§  953.  Same.     Sale  of  leasehold  interest. 

§  954.  Right  of  redemption. 

§  955.  Same.     Redemption   by   subsequent  mortgagee   not  made   a 
party. 


CONTENTS.  XXXlll 

CHAPTER    XLV. 

APPEAL. 

§  956.     Appeal.     In  general.     Statutory  provisions. 

§  957.     Error,  how  reviewed.     Exclusion  of  evidence. 

§  958.     Same.     Writ  of  review. 

§  959.     Parties  to  appeal. 

§  960.     Same.     Definition  of  adverse  party. 

§  961.     Same.     Appeal  from  judgment  denying  lien.     Death  of  one 

personally  liable. 
§  962.     Notice  of  appeal.     Contents.     Sale  of  property. 
§  963.     Same.     Personal  judgment  against  contractor. 
§  964.     Same.     Upon  whom  served. 
§  965.     Same.     Contractor  not  adverse  party. 
§  966.     Same.     Contractor  adverse  party.     Default. 
§  967.     Same.     Subsequent  mortgagee.     Injuriously  affected. 
§  968.     Same.     Beneficially  affected. 

§  969.     Same.     Who  need  not  be  served  with  notice  of  appeal. 
§  970.     Same.     Service  waived  by  stipulation. 
§  971.     Bond    for    costs.     Staying    judgment.     Lien    subordinate    to 

lien  foreclosed. 
§  972.     Stay  bond.     Lien  enforced. 
§  973.     Insufficient    record.     Compliance   with    specifications.     Void 

contract. 
§  974.     Presumptions  on  appeal.     In  general, 
§  975.     Same.     Extent  of  land. 
§  976.     Same.     Support  of  findings. 
§  977.     Same.     For  what  work  amount  found  due. 
§  978.     Same.     What  not  presumed  on  appeal. 
§  979.     What  not  involved.     Validity  of  deficiency  judgment  against 

contractor.     Appeal  by  owner. 
§  980.     Findings.     When  objections  not  considered. 
§  981.     Same.     On  appeal  from  order  denying  motion  for  new  trial. 
§  982.     Same.     Who  cannot  attack  findings.     General  creditors. 
§  983.     Harmless  error. 

§  984.     Same.     Sufficiency  of  claim  of  lien. 
§  985.     Objecting  on  appeal    for    first    time.     Contract   not    entirely 

filed. 
§  986.     Same.     Description  of  land. 
§  987.     Same.     Uncertainty  of  interest  in  property. 
§  988.     Consolidated  cases.     Hearing  on  appeal. 
§  989.     Order  on  appeal.     New  trial. 
§  990.     Same.     New  trial.     When  sustained. 
§  991.     Same.     Attorneys'  fees. 
Mech.  Liens  —  C 


PAT^T  TIT. 

FORMS. 


Form 

No. 

1. 

Form 

No. 

2. 

Form 

No. 

3. 

Form 

No. 

4. 

Form 

No. 

5. 

Form 

No. 

6. 

Form 

No. 

7. 

Form 

No. 

8. 

Form 

No. 

9. 

Form 

No. 

10. 

Clause    for    written    changes    in 


Clause  for  arbitration. 
Clause    for    damages    for 


delay 


CHAPTER    XLVI. 
CONTRACTS,    NOTICES,    CLAIMS,    COMPLAINTS,    ETC. 

Statutory  original  contract.     Skeleton  form. 

Building  contract.     Clause  for  working-drawings. 

Building  contract.     Clause  for  delays. 

Build.  .5  contract.  Clause  for  certificates  of  archi- 
tect as  to  payments. 

Building  contract.  Clause  for  delay  in  payments 
by  owner. 

Building  contract.  Clause  for  construction  of  draw- 
ings and  specifications. 

Building  contract.  Clause  for  alterations  in  con- 
tract. 

Building  contract 
contract. 

Building  contract 

Building  contract 
by  contractor. 

Building  contract.  Clause  for  liability  in  case  of 
destruction  of  building  before  completion.  Owner 
and  contractor  sharing  loss. 

Building  contract.  Clause  for  liability  in 
destruction  of  building  before  completion, 
assuming  loss. 

Building  contract.     Clause    for    inspection    and 
proval  of  work. 

Building  contract.  Clause  for  completion  of  build- 
ing by  owner,  upon  default  of  contractor. 

Builder's  non-statutory  original  contract.  Short 
form.  (Agreement  to  build  a  house  according  to  a 
plan  annexed,  material  to  be  furnistied  by  owner.) 

Bond  for  performance  of  original  contract. 

Notice  of  non-responsibility  by  owner.     Structure. 

Notice  of  non-responsibility  by  owner.  Mining 
claim. 

Statement  of  contractor.  Made  to  architect  or  owner 
as  to  liens,  to  obtain  payment. 

Notice  to  owner  of  furnishing  materials  or  per- 
forming labor. 

(xxxiv) 


Form  No.  11. 

Form  No.  12. 

Form  No.  13. 
irorm  No.  14. 
Form  No.  15. 

Form  No.  16. 
Form  No.  17. 
Form  No.  18. 

Form  No.  19. 

Form  No.  20. 


case    of 
Owner 


ap- 


CONTEXTS. 


XXXV 


Form 

No. 

21. 

Form 

No. 

22. 

Form 

No. 

23. 

Form 

No. 

24. 

Form 

No. 

25. 

Form 

No. 

26. 

Form 

No. 

27, 

Form  No.  28. 


Form 
Form 
Form 
Form 

Torm 

Form 

Form 
Form 
Form 


No.  29. 
No.  30. 
No.  31. 
No.  32. 

No.  33. 

No.  34. 

No.  35. 
No.  36. 
No.  37. 


Form  No.  38. 


Form  No.  39. 


Form  No.  40. 


Notice,  by  owner,  of  completion  of  building,  or  of 
cessation  from  labor. 

Verification  to  foregoing  notice. 

Claim  of  lien.     Original  contractor.     Structure. 

Verification  to  the  foregoing. 

Claim  of  lien.  (Owner's  material-man  or  laborer.) 
Structure. 

Miner's  claim  of  lien.     General  form. 

Claim  of  lien.  Subclaimant;  subcontractor  in  the 
first  degree;  contractor's  material-man  or  laborer. 
Structure. 

Claim  of  lien  against  two  contiguous  buildings  owned 
by  the  same  person.     General  form. 

Claim  of  lien  for  grading  lot  in  incorporated  city. 

Owner's  notice  to  contractor  to  defend  lien  suits. 

Release  of  lien. 

Complaint  for  foreclosure  of  lien.  Original  contrac- 
tor, under  non-statutory  original  contract. 

Complaint  for  foreclosure  of  original  contractor's 
lien,  under  statutory  original  contract. 

Complaint  of  lien-holder  for  grading  or  improving 
lot  in  incorporated  city. 

Complaint  for  foreclosure  of  subclaimant's  lien. 

Order  of  reference. 

Notice  by  contractor  that  he  intends  to  dispute  ac- 
count. 

Findings  and  decision.  Foreclosure  of  lien  of  own- 
er's material-men,  partners,  on  two  houses,  prop- 
erty sold  during  construction. 
Decree.  Foreclosing  lien  of  material-men.  cojiart- 
ners,  on  two  buildings,  property  sold  during  con- 
struction. 
Satisfaction  of  judgment. 


TABLE  OF  CORRELATED  SECTIONS. 

LIST    OF    ABBREVIATIONS. 

CALIFORNIA. 
Kerr's  Cyc.  Code  Civ.  Proc.     Kerr's  Cyclopedic  Code  of  Civil  Procednre. 

ALASKA. 
Civ.   Code.      Civil   Code  of   1900    (act   of  Congress   June   6,    1900,   ch.   xxviii; 
31    Stats,   at  Large,    ch.   dcclxxxvi,   p.    321;    3    Gould   and  Tucker's   Notes  U.   S. 
Rev.    Stats.,    pp.    224,    337;    1   Fed.    Stats.    Ann.,   p.    282). 

ARIZONA. 
Rev.  Stats.  1901.     Revised  Statutes  of  19d1,  tit.  xl,  ch.  ii. 

COLORADO. 

3  Mills's  Ann.  Stats.,  2d  ed.  3  Mills's  Annotated  Statutes,  second  edition 
(Laws   1899,  pp.   261  et  seq.). 

HAWAII. 
Bev.  Laws.     Revised  Laws  of  1905,  ch.  cxl. 

IDAHO. 
Sess.   Laws   1899,   p.   147.      Session   Laws   of   1899,   p.    147. 

MONTANA. 
Code  Civ.  Proc.     Code  of  Civil  Procedure,  tit.  iv. 

NEVADA. 
Cutting's  Comp.  Laws.     Cutting's  Compiled  Laws  of  1900   (act  of  March  14, 

1875). 

NEW  MEXICO. 
Comp.  Laws.     Compiled  Laws  of  1897. 

OKLAHOMA. 
Rev.  &  Ann.  Stats.     Wilson's  Revised  and  Annotated  Statutes  of  1903   (4817) 
S  619- (4831)    §  633,   ch.   66,  art.  27. 

OREGON. 

Bellinger  and  Cotton's  Ann.  Codes  and  Stats.  Bellinger  and  Cotton's  Anno- 
tated Codes  and  Statutes. 

UTAH. 
Rev.  Stats.      Revised  Statutes  of  1898,   §§  1372-1400. 

WASHINGTON. 
Pierce's  Code.     Pierce's  Washington  Code. 

WYOMING. 
Bev.   Stats.      Revised   Statutes  of   1899. 

This  table  may  be  used  to  advantage  by  attorneys  who  prefer  to 
trace  the  decisions  of  their  own  courts  under  each  appropriate  head, 
and  to  examine  the  allied  decisions  of  other  jurisdictions.  It  will  also 
be  found  convenient  in  tracing  cases  decided  hereafter.  The  table  is 
arranged  alphabetically,  by  subjects. 

(xxxvii) 


XXXviii  TABLE    OF    CORRELATED    SECTIONS. 

ABANDONMENT  OR  BREACH  OF  CONTRACT  BY  CONTRACTOR. 
AMOUNT  APPLICABLE  TO  LIENS. 
Kerr's  Cyc.  Code  Civ.  Proc,   S  1200.      (§§358  et  seci.,  post.) 
Colorado.     See  3  Mills's  Ann.  Stats.,  2d  ed.,  S  '-'SGS. 
Utah.     See  Rev.  Stats.,  §  1374. 

AGENCY  FOR  OWNER.     MINES. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1183.     (§  578,  post.) 
Alaska.    See  Civ.  Code,  §  262. 
Idaho.    Sess.  Laws  1899,  p.  147. 
Nevada.     Cutting's  Comp.  Laws,  §  3881. 

AGENCY  FOR  OWNER.     STRUCTURE. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1183.     (§§  572  et  seq.,  post.) 
Alaska.     Civ.  Code,  §  262. 
Arizona.     Rev.  Stats.  1901,   §  2906. 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2867. 
Idaho.     Sess.  Laws  1899,  p.  147,  §  1. 
Nevada.     Cutting's  Comp.  Laws,  §  3881. 

New  Mexico.     Comp.  Laws,  §  2217.     See  Comp.  Laws,  §  2304. 
Oregon.     Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,   §  5640. 
Utah.     Rev.  Stats.,  §  1372. 

Washington.    Pierce's  Code,  §  6102,  as  amended  Laws  1905,  ch.  cxvi. 
Wyoming.     Rev.  Stats.,  §  2907. 


ALTERATION  OF  ORIGINAL  CONTRACT. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1184.     (§§268,  326  et  seq.,  post.) 
Colorado.    3  Mills's  Ann.  Stats.,  2d  ed.,  §  2868. 
Utah.     Rev.  Stats.,  §§  1374,  1376  (payments). 


AMENDMENT    OF    CLAIM    OR    STATEMENT. 
(§415,  post.) 
Oklahoma.    Rev.  &  Ann.  Stats.,  (4821)  §  623. 
Washington.     Pierce's  Code,  §  6106. 

APPEALS. 
Kerr's  Cyc.   Code   Civ.   Proc,    §1199.      (§§956   et   seq.,   post.) 
Montana.    Code  Civ.  Prof..  §  2137. 
New  Mexico.     See  Laws  1907,  p.  105. 


TABLE    OF    CORRELATED    SECTIONS.  XXXIX 

ASSIGNEES. 
(§§  588  et  seq.,  post.) 
Arizona.     Eev.  Stats.  1901,  §2912. 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2883. 
Nevada.     Cutting's  Comp.  Laws,  §  3897. 
Oklahoma.    Eev.  &  Ann.  Stats.,  (4820)  §  622. 
Utah.     Rev;  Stats.,  §  1396. 
Washington.    Pierce's  Code,  §  6108.       See  Pierce's  Code,  §  6106. 

ATTORNEYS'   FEES   AND   COSTS. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1195.     (§§935  et  seq.,  post.) 

Alaska.     Civ.  Code,  §  270. 

Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2882. 

Idaho.     Sess.  Laws  1899,  p.  150,  §  12. 

Nevada.  Cutting's  Comp.  Laws,  §3892,  as  amended  Stats.  1903, 
p.  51. 

Ne^  Mexico.     Comp.  Laws,  §  2229. 

Oklahoma.     Rev.  &  Ann.  Stats.  (4825),  §627. 

Oregon.  2  Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5648 
(structures);  §5666  (improving  land);  §5672,  as  amended  Gen.  Laws 
1907,  p.  295   (mines). 

Utah.     Rev.  Stats.,  §  1400. 

Washington.     Pierce's- Code,  §  6113. 

Wyoming.     Rev.  Stats.,  §  2897. 

BOND  OF  CONTRACTOR  TO  BE  FILED.     PENALTIES. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1203.     (§§281  et  seq.,  and  §§  605  et  seq., 

post.) 
Oklahoma.     Rev.  &  Ann.  Stats.,   (4829)   §  631,   (4830)   §  632,  (4831) 
§  633. 

Washington.    Pierce's  Code,  §  6102,  as  amended  Laws  1905,  eh.  cxvi. 

CLAIM  OF  LIEN.  AGAINST  TWO  OR  MORE  IMPROVEMENTS. 
Kerr's  Cyc.  Code  Civ.  Proc,   §1188.      (§§368,  406,  407,  447   et  seq., 

post.) 

Colorado.     See  3  Mills's  Ann.  Stats.,  2d  ed.,  §  2869. 

Idaho.     Sess.  Laws  1899,  p.  148,  §  7. 

Nevada.     Cutting's  Comp.  Laws,  §  3886. 

New  Mexico.     Comp.  Laws,  §  2222. 

Utah.     Rev.  Stats.,  §  1387. 

Washington.    Pierce's  Code,  §  6109. 


Xl  TABLE   OF    CORRELATED    SECTIONS. 

CLAIM  OF  LIEN  AGAINST  TWO  OE  MOEE  IMPROVEMENTS. 
PRIORITIES. 
Kerr's  Cyc.  Code  Civ.  Proc,  §1188.     (§§502,  503  et  seq.,  post.) 
Idaho.    Sess.  Laws  1899,  p.  152,  §  7. 
Nevada.     Cutting's  Comp.  Laws,  §  3886. 
New  Mexico.     Comp.  Laws,  §  2222. 
Washington.     Pierce's  Code,   §  6109. 

CLAIM  OF  LIEN.     CONTENTS. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1187.     (§§370  et  seq.,  post.) 

Alaska.     Civ.  Code,  §  266. 

Arizona.  Rev.  Stats.  1901,  §2889  (contract  or  itemized  account); 
Rev.  Stats.  1901,  §  2891  (description) ;  Rev.  Stats.  1901,  §  2898  (at- 
tested account). 

Colorado.    3  Mills's  Ann.  Stats.,  2d  ed.,  §  2875. 

Hawaii.    Rev.  Laws,  §  2174. 

Idaho.     Sess.  Laws  1899,  p.  148,  §  6. 

Montana.  See  Code  Civ.  Proc,  §  2131,  as  amended  Laws  1901,  p. 
162    (account). 

Nevada.  Cutting's  Comp.  Laws,  §  3885,  as  amended  Stats.  1903, 
p.  51. 

New  Mexico.     Comp.  Laws,  §  2221. 

Oklahoma.    Rev.  and  Ann.  Stats.,  (4818)  §'620,  (4819)  §  621. 

Oregon.  2  Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5644 
(structures);  §5664  (improving  land);  §5669,  as  amended  Gen.  Laws 
1907,  p.  295  (mines). 

Utah.    Rev.  Stats.,  §  1386.    See  Rev.  Stats.,  §§  1388,  1399. 

Washington.     Pierce's  Code,  §  6106. 

Wyoming.  Rev.  Stats.,  §§2871,  2872,  2879  (mines);  §2893  (struc- 
tures). 

CLAIM  OF  LIEN,  OE  STATEMENT.     MANNER  OF  RECORDING. 

FEES. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1189.     (§§  416  et  seq.,  post.) 

Alaska.     Civ.  Code,  §  267. 

Arizona.  Rev.  Stats.  1901,  §  2889  (contract  or  itemized  account) ; 
§2890   (verbal  contract). 

Hawaii.     Rev.  Laws,  §  2175. 

Idaho.     Sess.  Laws  1899,  p.  152,  §  9. 

Montana.  Code  Civ.  Proc,  §  2131,  as  amended  Laws.  1901,  p.  162 
(account);  Code  Civ.  Proc,  §2132. 

Nevada.     Cutting's  Comp.  Laws,  §  3887. 

New  Mexico.    Comp.  Laws;  §  2223. 


TABLE   OF    CORRELATED   SECTIONS.  xli 

CLAIM  OF  LIEN,  OR  STATEMENT.  MANNER  OF  RECORDING. 
FEES.     (Continued.) 

Oklahoma.    Rev.  &  Ann.  Stats.,  (4818)  §  620,  (4819)  §  621. 

Oregon.  2  Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5645 
(striK-tures);  §5665;  §5670,  as  amended  Gen.  Laws  1907,  p.  296 
(mines). 

Utah.     Rev.  Stats.,  §  1389. 

Washington.     Pierce's  Code,  §  6107. 

Wyoming.  Rev.  Stats.,  §§2871,  2872,  2879,  2881  (mines);  §2894 
(structures). 

CLAIM    OF    LIEN,    OR    STATEMENT.      TIME    OF    FILING    FOR 

RECORD. 
Kerr's   Cyc.   Code  Civ.   Proc,    §1187.      (S§422   et   seq.,   post.) 

Alaska.     Civ.  Code,  §  2GG. 

Arizona.     Rev.  Stats.  19ul,  §§2889,  2898  (contract  or  account). 

Idaho.     See  Sess.  Laws  1899,  p.  148,  §  6;  p.  151,  §  5. 

Montana.     Code  Civ.  Proc,  §  2133. 

Nevada.  Cutting's  Comp.  Laws,  §  3885,  as  amended  Stats.  1903, 
p.  51. 

New  Mexico.    Comp.  Laws,  §  2221. 

Oklahoma.    Rev.  &  Ann.  Stats.,  (4818)  §  620,  (4819)  §  621. 

Oregon.  2  Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5669,  as 
amended  Gen.  Laws  1907,  p. -295  (mines).     See  §5664. 

Utah.     Rev.  Stats.,  §  1386.     See  §  1388. 

Washington.    Pierce's  Code,  §  6106. 

Wyoming.     Rev.  Stats.,  §§2871,  2S72   (mines). 

CLAIM   OF   LIEN.      STATUTORY    COMPLETION   FOR   PURPOSE 

OF  FILING. 
Kerr's  Cyc.  Code  Civ.  Proc,   §1187.      (§§348  et  seq.,  and   §§422  et 

seq..,  post.) 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2875. 

CONSOLIDATION  OF   ACTIONS. 
Kerr's  Cyc.  Code  Civ.  Proc,  §1195.      (§§869  et  seq.,  post.) 
Alaska.     Civ.  Code,  §  292. 

Colorado.    3  Mills's  Ann.  Stats.,  2d  ed.,  §  2877. 
Idaho.     Sess.  Laws  1899,  p.  150,  §  12. 

Nevada.  Cutting's  Comp.  Laws,  §  3892,  as  amended  Stats.  1903, 
p.  51. 

New  Mexico.     Comp.  Laws,  §  2229. 
Oklahoma.    Rev.  &  Ann.  Stats.,  (4823)  §  625. 


Xlii  TABLE   OF    CORRELATED   SECTIONS. 

CONSPIRACY  TO  MAKE  CONTRACT  PRICE  APPEAR  LESS. 
Kerr's  Cyc.  Code  Civ.  Proc,   §  1202.     (§  314,  post.) 

CONSTRUCTION  OF  STATUTE. 
Kerr's  Cyc.  Code  Civ.  Proc,  §§  4,  1183,  1184.     (§§  24-27,  post.) 
Washington.     Pierce's  Code,  §  6119. 

CONTRACTOR  LIABLE  TO  OWNER  FOR  EXCESSIVE  LIEN 
PAYMENTS. 
Kerr's  Cyc.  Code  Civ.  Proc,  §1193.     (§§64,  510  et  seq.,  post.) 
Alaska.     Civ.  Code,  §  272. 
Arizona.     Rev.  Stats.  1901,  §  2901. 
Nevada.     Cutting's  Comp.  Laws,  §  3890. 
New  Mexico.     Comp.  Laws,  §  2227. 

Oregon.     Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5650. 
Washington.    Pierce's  Code,  §  6111. 
Wyoming.     Rev.  Stats.,  §  2906. 

CONTRACTOR  TO  DEFEND  LIEN  SUITS. 
Kerr's  Cyc.  Code  Civ.  Proc,  §1193;     (§§64,  510  et  seq.,  post.) 
Alaska.     Civ.  Code,  §  272. 
Arizona.    Rev.  Stats.  1901,  §  2901. 
Idaho.     Sess.  Laws  1899,  p.  148,  §  10. 
Nevada.     Cutting's  Comp.  Laws,   §  3890. 
New  Mexico.     Comp.  Laws,  §  2227. 
Oklahoma.    Rev.  &  Ann.  Stats.,  (4822)  §  624. 
Oregon.     Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5650. 
Washington.     Pierce's  Code,  §  61^x, 
Wyoming.     Rev.  Stats.,  §  2906. 

COSTS. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1195.     (§§  936  et  seq.,  post.) 
Colorado.    3  Mills's  Ann.  Stats.,  2d  ed.,  §  2882. 
Idaho.     Sess.  Laws  1899,  p.  150,  §  12. 

Nevada.     Cutting's  Comp.   Laws,   §3892,  as  amended  Stats.    1903, 
p.  r,]. 

New  Mexico.     Comp.  Laws,  §  2229. 

Oklahoma.     Rev.  &  Ann.  Stats.,  (4822)   §  624,  (4826)   §  628. 

Utah.     Rev.  Stats.,  §  1394. 


TABLE   OP    CORRELATED    SECTIONS.  xliii 

COUNTEECLAIMS. 
Kerr's  Cyc.  Code  Civ,  Proc,  §1184.     (§S515,  516,  post.) 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2868. 
Utah.     fiev.  Stats.,  §  1375. 

DEFICIENCY  JUDGMENT. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1194.     (§§  922  et  seq.,  post.; 

Alaska.     See  Civ.  'ode,  §270. 

Oregon.      Bellinger    and    Cotton's    Ann.    Codes    and    Stats.,    §  -5618 
(stnutures);   §.5672,  as  amended  Gen.  Laws  1907,  p.  296  (mine). 
Utah.     Rev.  Stats.,  §  1393. 
Washington.     Pierce's  Code,  §  6113. 

EFFECT  OF  NON-CONFORMITY   OF   CONTRACT   AND  ALTERA- 
TIONS. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1184.     (§§  271,  319  et  seq.,  post.) 

EMPLOYER    WITHHOLDING    MONEYS    UPON    NOTK^E. 

Kerr's  Cyc.  Code  Civ.  Proc,   §  1184.     (§§  547  et  seq.,  post.) 
Arizona.     Rev.  Stats.  1901,  §  2901. 
Hawaii.     See  Rev.  Laws,  §  2178. 

EXTENT    OF   LIEN.      INTEREST    OF   EMPLOYER    SUBJECT    TO 

LIEN. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1185.     (§§  459  et  seq.,  post.) 

Alaska.    Civ.  Code,  §  263. 

Arizona.    Rev.  Stats.  1901,  §  2906. 

Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §§  2869,  2871. 

Hawaii.     Rev.  Laws,  §  2173. 

Idaho.    Sess.  Laws  1899,  p.  148,  §  4. 

Montana.     Code  Civ.  Proc,  §  2133. 

Nevada.     Cutting's  Comp.  Laws,  §  3883. 

New  Mexico,     Comp.  Laws,  §  2219. 

Oregon.     Bellinger  and  Cotton's  Ann.  Codes  and  Stats..  §  .5641. 

Utah.    Rev.  Stats.,  §  1372;  §  1382  (mines). 

Washington.    Pierce's  Code,  §  6103,  as  amended  Laws  1905,  ch.  cxvi. 

Wyoming.     See  Rev.  Stats.,  §  2873  (mines);  §§  2890,  2909. 

EXTENT    OF    LIEN.     INCORPOREAL    RIGHTS. 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2873. 
Utah.     Rev.  Stats.,  §  1377, 


xliv  TABLE   OF    CORRELATED   SECTIONS. 

EXTENT    OF    LIEN.      LEASEHOLD    INTEREST. 
(§  467,  post.) 

Alaska.    Civ.  Code,  §  263. 

Colorado.    3  Mills's  Ann.  Stats.,  2d  ed.,  §  2870a. 

Montana.  See  Code  Civ.  Proc,  §  592,  as  amended  Laws  1899,  p. 
124;   §2134. 

Oregon.  Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5641 
(structure);  §5668,  as  amended  Gen.  Laws  1907,  p.  293  (mine). 

Utah.     Rev.  Stats.,  §  1372;  §  1382  (mines). 

Wyoming.    Rev.  Stats.,  §§  2892,  2909. 

EXTENT  OF  LIEN.     FOR  VALUE. 
Kerr's  Cyc.  Code  Civ.  Proc,   §  1184.      (§  456,  post.) 
Arizona.     Rev.  Stats.  1901,   §  2898. 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2868. 
Hawaii.     Rev.  Laws,  §  2173. 
Utah.     Rev.  Stats.,  §  1372. 

EXTENT   OF  LIEN  LIMITED  BY   CONTRACT   PRICE. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1183.     (§§452  at  seq.,  post.) 
Alaska.     Civ.  Code,  §  272. 

Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2867. 
Idaho.     Sess.  Laws  1899,  p.  148,  §  10. 
Oklahoma.    Rev.  &  Ann.  Stats.,  (4819)  §  621. 
Utah.     Rev.  Stats.,   §  1373. 

EXTENT    OF    LIEN.     MINING    MACHINERY    AS    FIXTURES. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1192  (1907).     (§§  445,  185  et  seq.,  post.) 
Arizona.     See  Rev.  Stats.  1901,  §  2906. 
Colorado.     See  3  Mills's  Ann.  Stats.,  2d  ed.,  §  2870a. 

EXTENT  OF  LIEN.     TERRITORIAL.     MINES. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1183.     (§§  443  et  seq.,  post.) 
Alaska.     Civ.  Code,  §  263. 
Arizona.     Rev.  Stats.  1901,  §  2906. 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2870, 
Utah.     Rev.  Stats.,  §  1381. 

EXTENT    OF    LIEN.      TERRITORIAL.      STRUCTURE. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1183.     (§§  438  et  seq.,  post.) 
Alaska.     Civ.  Code,  §  263. 

Arizona.  Rev.  Stats.  1901,  §2888;  §2893  (outside  city);  §2894  (in 
city). 


TABLE   OF    CORRELATED   SECTIONS.  slv 

EXTENT  OF  LIEN.     TEERITORIAL.     STRUCTURE.     (Continued.) 
Colorado.    3  Mills's  Ann.  Stats.,  2d  ed.,  §  2869. 
Hawaii.     See  Rev.  Laws,  §  2173. 
Idaho.     Sess.  Laws  1899,  p.  148,  §  4. 
Montana.    Code  Civ.  Proc,  §  2133. 
Nevada.    Cutting's  Comp.  Laws,  §  3883. 
New  Mexico,    Comp.  Laws,  §  2219. 
Oklahoma.     Rev.  &  Ann.  Stats.,  (4817)   §  619. 
Oregon.     Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5641. 
Utah.     Rev.  Stats.,  §  1379. 

Washington.    Pierce's  Code,  §  6103,  as  amended  Laws  1905,  ch.  cxvi. 
Wyoming.    Rev.  Stats.,  §§  2889,  2890. 

EXTENT  OF  LIEN.     TERRITORIAL.     STRUCTURES.     LAND  FOR 
CONVENIENT  USE  AND  OCCUPATION. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1185.     (§§  440  et  seq.,  post.) 
Alaska.     Civ.  Code,  §  263. 
Idaho.     Sess.  Laws  1899,  p.  148,   §4. 
New  Mexico.    Comp.  Laws,  §  2219. 

Oregon.     Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5641. 
Utah.     Rev.  Stats.,  §  1379. 

FORFEITURE  OF  LIEN. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1202.     (§§  632  et  seq.,  post.) 

FORUM. 
(§§651    et   seq.,   post.) 

Alaska.     Civ.  Code,  §270. 

Arizona.     Rev.  Stats.  1901,  §  2897. 

Idaho.  Sess.  Laws  1903,  p.  95,  amending  Rev.  Stats.,  §  3841  (Sess. 
Laws  1899,  p.  150,  §  15). 

Oregon.  Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5648  (struc- 
tures);  §  5672  (mines). 

Wyoming.    Rev.  Stats.,  §  2885  (mines). 

HOMESTEAD. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1241.     (§§  37,  493  et  seq.,  post.) 
Nevada.    Cutting's  Comp.  Laws,  §  550. 
Oklahoma.    Rev.  &  Ann.  Stats.,  (4817)  §  619. 
Wyoming.     Rev.  Stats.,  §  2901. 


Xlvi  TABLE    OF    CORRELATED    SECTIONS. 

JOINDER  OF  LIEN  CLAIMANTS  AS  PLAINTrPFS. 
(See  tit.  "  Parties.") 
Kerr's  Cyc.   Code  Civ.   Proc,    §  1195.      (§§  659   et  seq.,   post.) 
Alaska.     Civ.  Code,  §  292. 
Arizona.     Rev.   Stats.   1901,   §  2910. 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2877, 
Idaho.    See  Sess.  Laws  1899,  p.  148,  §  12. 
Montana.     Code  Civ.  Proc,  §  2138. 

Nevada.     Cutting's   Comp.   Laws,    §3892,   as   amended   Stats.    1903, 
p.  .11. 

New  Mexico.     Comp.  Laws,  §  2229. 
Washington.     See  Pierce's  Code,  §  6106. 

LABOR,   NATURE    OF.      GRADING,    ETC.,    WORK. 
Kerr's  Cyc.   Code  Civ.   Proc,    §  1191.      (§§  156  et  seq.,   post.) 
Alaska.     Civ.  Code,  §  269. 
Idaho.     Sess.  Laws  1899,  p.  147,  §  3. 
Montana.     Code  Civ.  Proc,  §  2130. 
Nevada.     Cutting's  Comp.  Laws,  §  3882. 
New  Mexico.     Comp.  Laws,  §  2218. 

Oregon.     See  Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §§  5647, 
5663. 

Washington.     Pierce's  Code,  §  6104. 

LABOR,  NATURE   OF.     MINES. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1183.     (§§149  et  seq.,  post.) 
Alaska.     Civ.  Code,  §§  262,  274. 
Arizona.     Rev.  Stats.  1901,  §§2904,  2906. 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2870. 
Idaho.     Sess.  Laws  1899,  p.  147,  §  1. 
Montana.     Code  Civ.  Proc,  §  2130. 
Nevada.     Cutting's  Comp.  Laws,  §  3881. 
New  Mexico.     Comp.  Laws,  §  2217. 

Oregon.     Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,   §  5668,  as 
amended  Gen.  Laws  1907,  p.  293. 
Utah.    Rev.  Stats.,  §  1381. 

Washington.    Pierce's  Code,  §  6102,  as  amended  Laws  1908,  ch.  cxvi. 
Wyoming.    Rev.  Stats.,  §§  2868,  2869,  2875,  2888. 

LABOR,   NATURE    OF.      STRUCTURES. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1183.     (§§  130  et  seq.,  post.) 
Alaska.     Civ.  Code,  §§262,  274. 

Arizona.     Rev.  Stats.  1901,  §§2888,  2898;  §2902  (railroad). 
Colorado.    3  Mills's  Ann.  Stats.,  2d  ed.,  §  2867. 


TABLE   OF    CORRELATED    SECTIONS.  xlvii 

LABOR,    NATUEE    OF.     STEUCTURES.      (Coutinued.) 
Hawaii.     Rev.  Laws,  §  2173. 
Idaho.     Sess.  Laws  1899,  p.  147,  §  1. 
Montana,    Code  Civ.  Proc,  §  2130. 
Nevada.     Cutting's  Comp.  Laws,  §§3881,  8899. 
New  Mexico.     Comp.  Laws,  §  2217. 

Oregon.      Bellinger   and   Cotton's   Ann.    Codes   and    Stats.,    §§  .5040, 
5652. 

Utah.     Eev.  Stats.,  §§  1372,  1397. 

Washington.     Pierce's  Code,  §  6102,  as  amended  Laws  1905,  ch.  cxvi. 

Wyoming.    Eev.  Stats.,  §  2889. 

LIABILITY     OF     CONTRACTOR     FOR     SUBLIEN     JUDGIMENTS 
AGAINST  OWNER. 
Kerr's  Cyc.  Code  Civ.  Proc,  S  1193.     (S§  64,  511  et  seq.,  post.) 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,   §  2868.     The  statute  uses 

the  expression  "  principal  contractor." 
Idaho.     Sess.  Laws  1899,  p.  148,  §  10. 

LIABILITY   OF   CONTEACTOR   FOE   SUBLTENS. 
Kerr's  Cyc.  Code  Civ.  Proc,  8  1193.     (§§  64,  511  et  seq.,  post.) 

LIMITATION  FOE  COMMENCING  ACTIONS. 

Kerr's  Cyc   Code  Civ.   Proc,   S  1190.      (§S  649  et   seq.,  post.) 

Alaska.     Civ.  Code,  §  268. 

Arizona.     Eev.  Stats.  1901,  §  2909. 

Colorado,     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2876, 

Idaho,     Sess.  Laws  1899,  p.  148,  §  9. 

Montana,     Code  Civ.  Proc,   §  2139. 

Nevada.     Cutting's  Comp.  Laws,  §  3888, 

New  Mexico,     Comp.  Laws,  §  2224. 

Oklahoma,    Rev.  &  Ann.  Stats.,  (4821)  §  623,  (4826)  §  628. 

Oregon.  2  Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5646 
(structures);  §5667  (improving  land);  §5671,  as  amended  Gen.  Laws 
1907,  p.  296  (mines). 

Utah.     Rov.  Stats.,  §  1390. 

Washington.    Pierce's  Code,  §  6110. 

Wyoming.     Rev.  Stats.,  §2874  (mines);  §2902   (structures), 

MATERIALS     EXEMPT     FROM     PROCESS.       EXCEPTION     FOE 
PURCHASE    PRICE. 
Kerr's  Cyc.  Code  Civ,  Proc,  §1196.     (§647,  post.) 
Alaska.     Civ.  Code,  §  273. 
Idaho,    Sess.  Laws  1899,  p.  150,  §  13, 


xlviii  TABLE   OP    CORRELATED   SECTIONS, 

MATERIALS     EXEMPT     FROM     PROCESS.       EXCEPTION     FOR 
PURCHASE    PRICE.     (Continued.) 
Nevada.     Cutting's  Comp.  Laws,  §  3893. 
New  Mexico.     Comp.  Laws,  §  2230. 

Oregon.     Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5651. 
Utah.    Rev.  Stats.,  §  1395. 
Washington.     Pierce's  Code,  §  6116. 

MISTAKES  NOT  TO  FORFEIT  LIEN. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1203a  (1907).     (§§  412  et  seq.,  and 

§§  632  et  sect.,  post.) 
Colorado.    See  3  Mills's  Ann.  Stats.,  2d  ed.,  §  2875. 
Montana.     Code  Civ.  Proc,  §  2131,  as  amended  Laws  1901,  p.  112. 

NEW  TRIAL. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1199.     (§  877,  post.) 
Montana.     Code  Civ.  Proc,  §  2137. 

NOTICE     BY     CONTRACTOR     TO     OWNER.       OBJECTION     TO 

ACCOUNT. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1202.    (§§  632  et  seq.,  796  i)ost.) 
Arizona.    Rev.  Stats.  1901,  §  2900. 
Wyoming.     Rev.  Stats.,  §  2877   (mines). 

NOTICE   OF   COMPLETION,   OR   CESSATION  FROM   LABOR. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1187.     (§§  425  et  seq.,  post.) 

NOTICE  OF  NON-RESPONSIBILITY  UPON  KNOWLEDGE  OF  IM- 
PROVEMENT.     STRUCTURES  AND   MINING  CLAIMS. 
Kerr's  Cyc.  Code  Civ.  Proc,  S  1192  (1907).     (§§169  et  seq.,  post.) 
Alaska.     Civ.  Code,  §  265. 

Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2871. 
Nevada.     Cutting's  Comp.  Laws,  §  3889. 
New  Mexico.     Comp.  Laws,  §  2226. 

Oregon.     Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5643  (struc- 
tures);  §5668,  as  amended  Gen.  Laws  1907,  p.  293,  §§  1,  6  (mines). 

NOTICE    BY    OWNER     AS    TO    CONDITIONS    UNDER    WHICH 
WORK  IS  DONE. 
Idaho.     Act  approved  March  14,  1899. 
Utah.     Rev.  Stats.,  §  1375. 


TABLE    OF    CORRELATED    SECTIONS.  xHx 

NOTICE  TO  OWNER.     CONTENTS.     SERVICE. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  118i.     {§§547  et  seq.,  post.) 
Arizona.     Rev.  Stats.  1901,  §§  2890,  2899. 
Colorado.    3  Mills's  Ann.  Stats.,  2d  ed.,  §  2868. 
Hawaii.     Rev.  Laws,  §  2174. 

Oklahoma.     See  Rev.  and  Ann.  Stats.,  (4819)  §  621, 
Wyoming.     See  Rev.  Stats.,  §  2876  (mines). 

OB.TECT    OF    LABOR.     GRADING,    ETC. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1191.     (§  184,  post.) 
Alaska.     Civ.  Code,  §  269. 
Arizona.    Rev.  Stats.  1901,  §  2905. 
Idaho.     Sess.  Laws  1899,  p.  147,  §  3. 
Montana.     Code  Civ.  Proc,  §  2130. 
Nevada.     Cutting  s  Comp.  Laws,  §  3882. 
New  Mexico.    Comp.  Laws,  §  2218. 
Oklahoma.     See  Rev.  &  Ann.  Stats.,  (4817)   §  619. 
Oregon.     See  Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §§  5647, 
5663. 

Washington.     Pierce's  Code,  §  6104. 

OBJECT   OF  LABOR.     MINES. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1183.     (§§182  et  seq.,  post.) 
Alaska.     Civ.  Code,  §§  262,  274. 
Arizona.     Rev.  Stats.  1901,  §§  2904,  2906. 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2870. 
Idaho.     Sess.  Laws  1899,  p.  147,  §  1. 
Montana.     Code  Civ.  Proc,  §  2130. 
Nevada.     Cutting's  Comp    Laws,  §  3881. 
New  Mexico.     Comp.  Laws,  §  2217. 

Oregon.     Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,   §  5668,  as 
amended  Gen.  Laws  1907,  p.  293. 
Utah.     Rev.  Stats.,  §  1381. 

Washington.    Pierce's  Code,  §  6102,  as  amended  Laws  1905,  eh.  cxvi. 
Wyoming.     Rev.  Stats.,  §§  2868,  2869,  2875,  2884. 

OBJECT    OF    LABOR.      STRUCTURES. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1183.     (§§  166  et  seq.,  post.) 
Alaska.     Civ.  Code,  §§  262,  274. 

Arizona.     Rev.  Stats.  1901,  §§2888,  2898;  §2902   (railroad);   §2903. 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2867. 
Hawaii.     Rev.  Laws,  §2173. 
Idaho.    Sess.  Laws  1899,  p.  147.  §§  1,  2. 
Montana.     Code  Civ.  Proc,  §2130. 
Mech.  Liens  —  D 


1  TABLE   OF    CORRELATED    SECTIONS. 

OBJECT    OF    LABOK.     STRUCTURES.     (Continued.) 
Nevada.     Cutting's  Comp.  Laws,  §§  3881,  3899. 
New  Mexico.     Comp.  Laws,  §  2217. 
Oklahoma.     Rev.  &  Ann.  Stats.,  (4817)  §  619. 

Oregon.    Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §§  .5640,  .56-52. 
Utah.     Rev.  Stats.,  §§  1372,  1397. 

Washington.    Pierce's  Code,  §  6102,  as  amended  Laws  1905,  ch.  cxvi. 
Wyoming.    Rev.  Stats.,  §  2889, 

ORIGINAL  CONTRACTOR.     DEFINITION  OF. 
Kerr's  Cyc.  Code  Civ.  Proc,  §§1183,  1184,  1193,  1201.     (§§45  et  seq., 

post.) 
Utah.     Rev.  Stats.,  §  1383. 

OWNER,  DEFINITION  OF. 
(§§  508  et  seq.,  post.) 
Montana.     Code  Civ.  Proc,  §  2140. 
Wyoming.    Rev.  Stats.,  §  2907. 

OWNER.    ACTION   BY,   AGAINST   CLAIMANTS. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1184.     (§§  644,  871  et  seq.,  post.) 
Oklahoma.    Rev.  &  Ann.  Stats.,  (4826)  §  628. 

OWNER    DEDUCTING    FROM    CONTRACTOR    SUBLIEN 
JUDGMENTS. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1193.     (§  511,  post.) 
Alaska.     Civ.  Code,  §  272. 
Arizona.     Rev.  Stats.  1901,  §  2901. 
Colorado.    See  3  Mills's  Ann.  Stats.,  2d  ed.,  §  2868. 
Idaho.     Sess.  Laws  1899,  p.  148,  §  10. 
Nevada.     Cutting's  Comp.  Laws,  §  3890. 
New  Mexico.    Comp.  Laws,  §  2227. 

Oregon.     Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5650. 
Washington.     Pierce's  Code,  §  6111. 
Wyoming.     Rev.  Stats.,  §2906. 

OWNER  WITHHOLDING  CONTRACT  PRICE. 
Kerr's  Cyc.  Code  Civ.  Proc,   §  1193.      (§  514,  'post.) 
Alaska.     Civ.  Code,  §  272. 
Arizona.    Rev.  Stats.  190l,  §  2898. 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2868. 
Hawaii.    Rev.  Laws,  §  2178. 


TABLE   OF    CORRELATED    SECTIONS,  U 

OWNER    WITHHOLDING    CONTRACT    PRICE.      (Continued.) 

Idaho.     Sess.  Laws  1899,  p.  148,  §  10. 

Nevada.     Cutting's  Comp.  Laws,  §  3890. 

New  Mexico.     Comp.  Laws,  §  2227. 

Oklahoma.    Rev.  &  Ann.  Stats.,  (4819)  §  621,  (4822)  §  624. 

Oregon.     Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5650. 

Washington.     Pierce's  Code,  §  6111. 

Wyoming.     Rev.  Stats.,  §§2876,  2878  (mines);  §2906  (structures). 


PARTIES. 
(See  "Joinder  of  Lien  Claimants.") 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1195.     (§§659  et  seq.,  post.) 
Alaska.     Civ.  Code.  §  270. 

Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §§2877,  2881. 
Montana.     Code  Civ.  Proc,  §  2138. 
New  Mexico.     Comp.  Laws,  §  2229. 

Oklahoma.     Rev.  &  Ann.  Stats.,  (4822)  §  624,  (4826)  §  628. 
Oregon.    Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5648  (struc- 
tures);  §5672,  as  amended  Gen.  Laws  1907,  p.  296  (mines). 
Washington.     Pierce's  Code,  §  6112. 
Wyoming.     Rev.  Stats.,  §2880  (mines);  §2896  (structures). 

PAYMENTS    IN    MONEY. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1184.     (§  280,  post.) 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2868. 
Utah.     Rev.  Stats.,  §  1375. 

PAYMENTS    DISTRIBUTED    AMONG    LIEN-HOLDERS. 

(§§254  et  seq.,  and  §§502  et  seq.,  post.) 

Alaska.     Civ.  Code,  §  271. 

Oregon.     Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5649. 

PAYMENTS  IN  ADVANCE  OF  WORK. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1184.     (§§269  et  seq.,  and  §  563,  post.) 
Utah.     Rev.  Stats.,  §  1373. 

PERSONAL  ACTION  PRESERVED. 
Kerr's  Cyc.  Code  Civ.  Proc,  §§  1197,  1203.     (§§  73,  638  et  seq.,  post.) 
Kerr's  Cyc.  Code  Civ.  Proc,   §  1197.     (§§  638,  914  et  seq.,  post.) 
Colorado.     See  3  Mills's  Ann.  Stats.,  2d  ed.,  §  2879. 
Idaho.     Sess.  Laws  1899,  p.  150,  §  14. 


lii  TABLE   OF    CORRELATED    SECTIONS. 

PEESONAL    ACTION    PEESEEVED.       (Continued.) 
Nevada.    Cutting's  Comp.  Laws,  §§  3894,  3895. 
New  Mexico.     Comp.  Laws,  §  2231. 
Washington.     Pierce's  Code,  §§  6113,  6114. 

PEESONS  ENTITLED.     GEADING,  ETC.,  WOEK. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1191.     (§§  42  et  seq.,  post.) 
Alaska.     Civ.  Code,   §  269. 
Idaho.     Sess.  Laws  1899,  p.  147,  §  3. 
Montana.     Code  Civ.  Proc,  §  2130. 
Nevada.     Cutting's  Comp.  Laws,  §  3882. 
New  Mexico.    Comp.  Laws,  §  2218. 
Oklahoma.    Eev.  &  Ann.  Stats:,  (4817)  §  619. 

Oregon.     See    2    Bellinger    and    Cotton's    Ann.    Codes    and    Stats., 
§§  5647,  5663. 

Washington.     Pierce's  Code,  §  6104. 

PEESONS  ENTITLED.     MINES. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1183.     (§§42  et  seq.,  post.) 
Alaska.     Civ.  Code,  §262. 
Arizona.    Eev.  Stats.  1901,  §  2904. 
Colorado.    3  Mills's  Ann.  Stats.,  2d  ed.,  §  2870. 
Idaho.     Sess.  Laws  1899,  p.  147,  §  1. 
Montana.     Code  Civ.  Proc,  §  2130. 
Nevada.     Cutting's  Comp.  Laws,  §  3881. 
New  Mexico.    Comp.  Laws,  §  2217. 

Oregon.     Bellinger  an-d  Cotton's  Ann.  Codes  and  Stats.,  §  5668,  as 
amended  Gen.  Laws  1907,  p.  293. 
Utah.     Eev.  Stats.,  §  1381. 

Washington.    Pierce's  Code,  §  6102,  as  amended  Laws  1905,  ch.  cxvi. 
Wyoming.    Eev.  Stats.,  §§  2868,  2869,  2875,  2888. 

PEESONS  ENTITLED.     STEUCTUEES. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1183.     (§§42  et  seq.,  post.) 
Alaska.     Civ.  Code,  §262. 

Arizona     Eev.  Stats.  1901,  §§  2888,  2898,  2902,  2906.  ' 
Colorado.    3  Mills's  Ann.  Stats.,  2d  ed.,  §  2867. 
Hawaii.     Eev.  Laws,  §  2173. 
Idaho.     Sess.  Laws  1899,  p.  147,  §  1. 
Montana.    Code  Civ.  Proc,  §  2130. 
Nevada.     Cutting's  Comp.  Laws,  §§  3881,  3899. 
New  Mexico.    Comp.  Laws,  §  2217. 

Oklahoma.    Eev.  &  Ann.  Stats.,  (4817)  §  6l9,  (4819)  §  621. 
Oregon.    Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5640. 


TABLE   OF    CORRELATED    SECTIONS.  lii* 

PEESONS    ENTITLED.     STRUCTURES.      (Continued.) 
Utah.     Rev.  Stats.,  §§1372,  1397. 

Washington.    Pierce's  Code,  §  6102,  as  amended  Laws  1905,  ch.  cxvi 
Wyoming.     Rev.  Sats.,  §  2889. 

PRACTICE. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1198.     (§§  864  et  seq.,  post.) 

Alaska.     Civ.  Code,  §  270. 

Arizona.     Rev.  Stats.  1901,  §§  2910,  2913. 

Colorado.  See  3  Mills's  Ann.  Stats.,  2d  ed.,  §§  2877,  2878,  2879, 
2881,  2886. 

Hawaii.     Rev.  Laws,  §  2177. 

Idaho.     Sess.  Laws  1899,  p.  150,  §  15. 

Montana.     Code  Civ.  Proc,  §  2136. 

Nevada.  Cutting's  Comp.  Laws,  §  3895;  Stats.  1907,  ch.  xc,  §  2,  act 
approved  March  20,  1907. 

New  Mexico.     Comp.  Laws,  §  2225  (summons). 

Oklahoma.     Rev.  &  Ann.  Stats.,  (4821)  §  623. 

Oregon.  .2  Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §5648 
(structures);  §5666  (improving  land);  §5672,  as  amended  Gen.  Laws 
1907,  p.  296  (mines). 

Utah.    Rev.  Stats.,  §  1391. 

Wyoming.  Rev.  Stats.,  §§2886,  2887  (mines);  §§2895,  2897,  2898, 
2899,  2900  (structures). 

PREFERENCE    ON    COURT    CALENDAR. 

Alaska.     Civ.  Code,  §  270. 

Colorado.    3  Mills's  Ann.. Stats.,  2d  ed.,  §  2879. 

Oregon.     Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5648. 

PREMATURE    PAYMENTS. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1184.     (§§269  et  seq.,  and  §  563,  post.) 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2868. 
Oregon.    Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5649. 
Utah.     Rev.  Stats.,  §  1374.     See  §  1378. 

PRIORITIES    AS    AGAINST    OTHERS. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1186.     (§§  486  et  seq.,  post.) 
Alaska.     Civ.  Code,  §  264. 
Arizona.    Rev.  Stats.  1901,  §  2908. 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2872. 
•  Hawaii.    Eev.  Laws,  §  2176. 
Idaho.    Sess.  Laws  1899,  p.  148,  §  5. 


liv  TABT.E    OF    CORRELATED    SECTIONS, 

PRIORITIES    AS    AGAINST    OTHERS.     (Continued.) 

Montana.     Code  Civ.  Proc,  §§  2133,  213.5. 

Nevada.  Cutting's  Comp.  Laws,  §  3884,  as  amended  March  14,  1899 
(§4,  act   March  2,  1875). 

New  Mexico.     Comp.  Laws,  §  2220. 

Oklahoma.    Rev.  &  Ann.  Stats.,  (4817)  §  619,  (4824)  §  626. 

Oregon.  Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5642  (struc- 
tures); §  5671,  as  amended  Gen.  Laws  1907,  p.  296  (mines). 

Utah.     Rev.  Stats.,  §§  1380,  1384,  1385. 

Washington.    Pierce's  Code,  §  6105.    See  §  6117  (husband  and  wife). 

Wyoming.     Rev.  Stats.,  §2873  (mines);   §2891   (structures). 

PROVISIONAL  REMEDIES. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1196.     (§§  645  et  seq.,  post.) 
Hawaii.     Rev.  Laws,  §  2177. 

RANKING   OF   LIENS. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1194.     (§§  504  et  seq.,  post.) 

Alaska.     Civ.  Code,  §  270. 
Arizona.     Rev.  Stats.  1901,  §  2911. 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §§  2869,  2874. 
Hawaii.    Rev.  Laws,  §  2176. 
Idaho.     Sess.  Laws  1899,  p.  148,  §  11. 
Montana.    Code  Civ.  Proc,  §  2133. 
Nevada.     Cutting's  Comp.  Laws,  §  3891. 
New  Mexico.     Comp.  Laws,  §  2228. 
Oklahoma.     Rev.  &  Ann.  Stats.,  (4827)  §  629. 

Oregon.    Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5648  (struc- 
tures); §5672,  as  amended  Gen.  Laws  1907,  p.  296  (mines). 
Utah.     Rev.  Stats.,  §§  1385,  1391. 
Washington.    Pierce's  Code,  §  6113. 
Wyoming.     Rev.  Stats.,  §2879  (mines);  §2908   (structures). 

RECORDING    LEASE    OR    CONTRACT.     MINE. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1192  (1907). 
Oregon.     Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,   §  5668,  as 
amended  Gen.  Laws  1907,  p.  293. 

SALE. 
Kerr's  Cyc.  Code  Civ.  Proc,  §§  681  et  seq.,  and  §  1189.     (§§948  et  seq., 

post.) 
Alaska.     Civ.  Code,  §  293. 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2880. 


TABLE   OF    CORRELATED    SECTIONS.  aV 

SALE.      (Continued.) 

Hawaii.    See  Rev.  Laws,  §  2177. 
Montana.     Code  Civ.  Proc,  §§2134,  2135. 

Nevada.     Cutting's  Comp.  Laws,  §  3895;  Stats.  1907,  ch.  xc,  §  2,  act 
approved  Marcli  20,  1907. 

Oklahoma.    Rev.  &  Ann.  Stats.,  (4824)  §  626. 
Utah.     Rev.  Stats.,  §  1392. 
Wyoming.     Rev.  Stats.,  §  2901. 

SALE    OF    BUILDING    SEPARATELY. 
(§§16,  188,  190,  948  et  seci.,  post.) 
Alaska.     Civ.  Code,  §  264. 

Arizona.    Rev.  Stats.  1901,  §§  2895,  2896,  2906. 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2869. 
Montana.     Code  Civ.  Proc,  §§2134,  2135. 
Oklahoma.     See  Rev.  &  Ann.  Stats.,  (4817)   §  619. 
Oregon.    Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §§  5641,  5642. 
Washington.    Pierce's  Code,  §  6118. 
Wyoming.     Rev.  Stats.,  §  2891. 

SATISFACTION  OF  LIEN. 
(§§  634  et  seq.,  post.) 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2884. 
Hawaii.     Rev.  Laws,  §  2176. 
Montana.     Code  Civ.  Proc,  §  2141. 
Nevada.     Cutting's  Comp.  Laws,  §  3896. 
Utah.     Rev.  Stats.,  §1398. 
Washington.     See  Pierce's  Code,  §  6115. 

Wyoming.     Rev.  Stats.,  §§2882,  2883  (mines);  §§2903,  2904  (struc- 
tures). 

SCHEDULE    OF    OPERATION    OF    ACT. 
(§  36,  post.) 
Alaska.     Civ.  Code,  §  275. 
Arizona.    Rev.  Stats.,  §§  2914,  2934. 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2887. 
New  Mexico.     Comp.  Laws,  §  2232. 
Washington.    Pierce's  Code,  §  6120. 

STATEMENT    OF    CLAIM,    AND    NOTICE    OF    INTENTION  TO 
CLAIM  A  LIEN. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1183  (§§  370  et  seq.,  post.) 
Utah.     Rev.  Stats.,  §  1388. 
Wyoming.    Rev.  Stats.,  §  2915. 


Ivi  TABLE   OP    CORRELATED   SECTIONS. 

STATUTOEY  ORIGINAL  CONTRACT.     CONTENTS. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1183.     (§§  214,  269  et  seq.,  post.) 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2867. 
Utah.     See  Rev.  Stats.,  §§  1373,  1375. 
Wyoming.     See  Rev.  Stats.,  §  2893. 

STATUTORY  ORIGINAL  CONTRACT.     MEMORANDUM. 

Kerr's  Cyc.  Code  Civ.  Proc,  §  1183.     (§§  300  et  seq.,  post.) 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2867. 
Utah.     See  Rev.  Stats.,  §  1373. 

STATUTORY  ORIGINAL   CONTRACT.     PAYMENTS. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1184,     (§§269  et  sect.,  post.) 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2868. 
Utah.     See  Rev.  Stats.,  §§  1373,  1375, 

STAYING    TRIAL. 
Oklahoma.    Rev.  &  Ann.  Stats.,  (4823)  §  625. 

SUBCONTRACTOR.     DEFINITION. 
(§§  66  et  seq.,  post.) 
Utah.     Rev.  Stats.,  §  1383. 

VOID    CONTRACT. 
Kerr's  Cyc.  Code  Civ.  Proc,   §  1183.     (§§  286  et  seq.,   §§  319  et  seq., 

post.) 

WAIVER  OF  LIENS. 
Kerr's  Cyc.  Code  Civ.  Proc,  §  1201.     (§§  627  et  seq.,  post.) 
Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §  2885. 
Washington.    See  Pierce's  Code,  §  6115. 


TABLE    OF   CASES. 

A                                                                  Pages 
Ahbe  V.  Marr  (Cal.) 5^5 

Aberdeen  E.  Co.  v.  Blaikie  (Scotch) 159 

Ackley  v.  Black  Hawk  G.  M.  Co.   (Cal.) 34,  63.5,  772 

Adams  v.  Baker   (Nev.)   448 

Adams  V.  Burbank   (Cal.)    ....69,  80,  91,  105,  132,  269,  485,  486, 

493,  542,  575,  587,  665,  705,  770,  795,  796 

Adams  v.  Pugh    (Cal.) 616 

Ah  Louis  V.  Harwood  (Cal.) .  .  .  .39,  83,  84,  87,  104,  143,  293,  299, 

304,  318,  321,  322,  323,  392,  436,  438,  456,  610,  647,  803 
Ainslie  v.  Kohn   (Oreg.)...9,  26,  43,  312,  314,  315,  362,  384,  579,  757 

Alberson  v.  Elk  Creek  G.  M.  Co.   (Oreg.) 149 

Alcatraz  M.  H.  Assoc,  v.  United  States  F.  &  G.  Co.  (Cal.) 219, 

488,  556,  567,  569,  817 

Aldrich  v.  Columbia  S.  E.  Co.  (Oreg.) 676,  695,  799 

Aldritt  V.  Panton    (Mont.) 264,  376,  584 

Aldritt  V.  Eailroad  Co.   (U.  S.) 145 

Alesina  v.  Stock   (Mont.) 376 

Alexander  v.  Fransham     (Mont.) 778 

Alexander  v.  Hemrich     (Wash.) 294 

Allen  V.  Elwert     (Oreg.) 87,  89,  119,  121,  132,  196,  304,  311, 

316,  326,  331,  344,  345,  580,  585,  682,  702,  758,  760 

Allen  V.  Lincoln     (Hawn.) 562,  605,  701 

AJlen  V.  Kedward  (Hawn.).. 8,  9,  11,  15,  22,  71,  75,  87,  199,  289, 

313,  342,  343,  410,  480,  495,  529,  545,  699,  701,  748 

Allen  V.  Eeist     (Hawn.) 160,  493,  604,  629,  717,  721 

Allen  V.  Eowe     (Oreg.) 16,  24,  306,  423,  433,  434,  534,  631 

Alvord   V.  Hendrie   (Mont.) 16,  146,  170,  300,  375,  399,  413, 

451,  585,  649 
American  B.  Co.  v.  Eegents  of  University  (Idaho) .  .560,  561,  709, 

731,  807,  818 
American-Hawaiian  Eng.  &  Cons.  Co.  v.  Territory  (Hawn.)  ..  .70,  192 

American  Nat.  Bank  v.  Barnard   (Colo.) 577,  758 

American  S.  &  L.  Assoc,  v.  Burghardt   (Mout.) 584 

American  Surety  Co.  v.  Scott  &  Co.  (Old.)  .  .  .  .  187,  289,  478,  483, 

564,  568,  570 

AmeVican  Type  Founders'  Co.  v.  Packer  (Cal.) 267,  733 

Amestoy  v.  Electric  E.  T.  Co.   (Cal.) 708 

A.  M.  Holter  Hardware  Co.  v.  Ontario  M.  Co.  (Mont.) 8,  9,  88, 

170.  177,  378,  447,  726,  740,  796 

Anderson  v.  Bank  of  Lassen  County  (Cal.) 708 

Anderson  v.  Bingham     (Colo.) 7,  22,  35,  347 

(Ivii) 


Iviii  TABT.E    OF    CASES. 

Pages 

Anderson  v.  Harper   (Wash.) 275.  416,  528,  696,  731 

Anderson  v.  Hilker   (Wash.) 161,  278,  528.  731 

Anderson  v.  Johnston     (Cal.) 206,  2.59,  262,  268,  77,3,  796 

Anderson  v.  McDonald     (Wash.) 196,  264,  269,  270 

Anglo-American  S.  &  L.  Assoc,  v.  Campbell  (D.  C.) 448 

Anthony  v.  Nye  (Cal.) 641,  642,  CSl 

Antlers  Park  Regent  M.  Co.  v.  Cunningham   (Colo.) .  .  .  16,  35,  48, 

87,  420,  421,  533,  770,  784,  792 

Antonelle  v.  Kennedy-Shaw  L.  Co.  (Cal.) Ill 

Apona  V.  Kamai   (Hawn.) 163,  689 

Arata  v.  Tellurium  G.  &  S.  M.  Co.  (Cal.) 324,  330,  332,  363 

Arkansas  Eiver  L.  Eeservoir  and  Canal  Co.  v.  Flinn  (Colo.).  .  .21. 

23,  375,  406,  615,  635,  637 

Arkansas  River  L.  R.  &  C.  Co.  v.  Nelson  (Colo.) 121 

Armijo  v.  Mountain  E.  Co.  (N.  M.) 14,  151,  157,  398,  575,  610, 

647,  654,  725,  750,  784,  803 

Armour  v.  Western  Const.  Co.  (Wash.) 36,  47,  88,  89,  220 

Arrington  v.  Wittenberg  (Nev.) 362,  791 

Ascha  V.  Fitch  (Cal.) 26 

Aste  V.  Wilson   (Colo.) 2,  4,  12,  16,  28,  75,  176,  199,  263,  409, 

562,  572,  574 

Atkins  V.  Little   (Minn.) 84 

Atkinson   v.  Woodmansee    (Kan.) . 48 

Atlantic  &  D.  R.  Co.  v.  Delaware  C.  Co.  (A' a.) 172 

Ausplund  V.  ^tna  Ins.  Co.  (Oreg.) 551,  556,  558,  561,  818 

Avery  v.  Butler  (Oreg.) 193,  275,  284 

Avery  v.  Clark    (Cal.) 9,  423.  434,  449,  456,  459,  744,  793 

Ayers  v.  Green  Gold  Min.  Co.  (Cal.) 125,  435,  439,  534,  535,  575 

B 

Baca  v.  Barrier  (N.  M.) 270 

Backus  v.  Archer     (Mich.) 566 

Badger  L.  Co.  v.  Marion  W.  S.,  E.  L.  &  P.  Co.  (Kan.) 407 

Badger  L.  Co.  y.  Maj^es    (Neb.) 84 

Baggs  V.  Smith   (Cal.) 737 

Baird  v.  Peall  (Cal.) 59.  62,  04,   HS,  217 

Baker  v.  Doherty    (Cal.) 256 

Baker  v.  Lake  L.  C.  &  Irr.  Co.  (Cal.) 377 

Baker  v.  Sinclaire     (Wash.) 417,  421,  457,  458 

Ball  V.  Doud    (Oreg.) '. 188 

Ball  V.  Houston     (Okl.) 73,  426 

Ban  V.  Columbia  S.  R.  Co.  (Fed.) 46,  144,  403,  407,  526 

Bancroft  v.  San  Francisco  Tool  Co.   (Cal.) 85,  176,  272,  681 

Bank  of  Idaho  v.  Malheur  County   (Oreg.) 152,'  154 

Bank  of  Ukiah  v.  Petaluma  Sav.  Bank  (Cal.) 458 

Bank  of  Woodland  v.  Treadwell  (Cal.) 775 

Barber  v,  Reynolds  (Cal.).. 226,  422,  451,  452,  453,  4.54,  456,  465, 

493,  578,  585,  592,  595,  603,  619,  760,  781,  782 


TABLE    OF    CASES.  lix 

Pages 

Bardwell  v.  Anderson   (Mont.) 313,  687,  712,  733 

Barilari  v.  Ferrea   (Cal.) 194,  261,  617,  638,  677,  694,  703 

Barker  v.  Doherty  (Cal.) 163,  232,  233,  250,  253,  267,  686 

Barnard  v.  McKenzie  (Colo.) 4,  8,  16,  23,  91,  757.  759 

Barnes  v.  Colorado  Springs  &  C.  C.  D.  E.  Co.  (Colo.) 317,  606 

Barrows  v.  Knight    (Cal.) 62,  87,  383 

Barry  v.  Coughlin    (Cal.) 622,  795 

Barton  v.  Eose  (Oreg.) 326,  329,  368,  369 

Bartow  v.  Northern  Assur.  Co.  (S.  D.) 658 

Bassiek  M.   Co.  v.  Sehoolfield   (Colo.) 725,  751,  778 

Bateman  Bros.  v.  Maple   (Cal.) 197,  570 

Bates  V.  County  of  Santa  Barbara    (Cal.).. 9,   154,  297,  507,  509, 

510,  511,  516,  522,  524,  577,  583,  584,  589,  760,  762,  772,  773 

Baum  V.  Whatcom  Co.  (Wash.) 218 

Beacannon  v.  Liebe   (Oreg.) 758 

Beach  v.  Staper  (Oreg.) 57,  529 

Bear  L.  &  E.  Water  Co.  v.  Garland  (Utah) 44 

Beatty  v.  Mills  (Cal.) 130,  163,  296,  382,  393,  539,  684,  685 

Bcatty  V.  Parker   (Mass.) 4u7 

Beck  V.  O'Connor  (Mont.) 422 

Becker  v.  Superior  Court  (Cal.) 49,  599,  761 

Beebe  v.  Eedward    (Wash.) 268,  551,  557,  673,  687,  818 

Beers  v.  Wolf  (Mo.) 556 

Bell  V.  Bosche    (Neb.) 634 

Bell  V.  Gaylord    (N.   M.) 461 

Bell  V.  Graves    (Wash.) 409,  423,  424,  425,  429,  449,  478 

Bell  V.  Paul    (Neb.) 556 

Belt  V.  Poppleton   (Oreg.)    485 

Bender  v.  Stettenius  (Ohio) 85 

Bennett  v.  Beadle     (Cal.) 32,  83,  84,  86,  87,  453,  738 

Bennett  v.  Davis     (Cal.) 59.  63,  64,  66,     82 

Bennett  v.  Shaughnessy    (Utah) 171.  270 

Berentz  v.  Belmont  Oil   M.  Co.    (Cal.) 116,  134,   138,   144,  145, 

147,  250,  255,  358,  399,  423,  600,  626.  756 

Berentz  v.  Kern  King  O.  &  D.  Co.  (Cal.) 756 

Berka   v.  Woodward    (Cal.) 109,  159 

Bethune  v.  Dozier   (Ga.) 556 

Bewick  v.  Muir   (Cal.) 87,  145,  146,  356,  399,  456,  461,  600, 

661,  668,  737,  738,  750 

Bianchi  v.  Hughes   (Cal.) 57,  87,  140,  151,  273,  278,  384,  507, 

509,  510,  583,  703,  704,  792,  796 

Bierce   v.   Hutchins    (Hawn.) 316,  584,  585 

Big  BlackfootM.  Co.  V.  Bluebird  M.  Co.  (Mont.). 146,  170,  396,  399,  408 

Big  Horn  L.  Co.  v.  Davis   (Wyo.) 6,  378,  452,  661,  737,  802 

Billings  V.  Everett   (Cal.) 737 

Bingham  County  A.  Assoc,  v.  Eogers  (Idaho) 149 

Birch  V.  Magic  Transit  Co.  (Cal.) 7,  429,  438,  443,  444,  445 

Birmingham  I.  F.  v.  Glenn  Cove  S.  Mfg.  Co.  (N.  M.) 84 


Ix  TABLE    OF    CASES. 

Pages 

Bitter  v.  Mouat  L.  &  I.  Co.  (Colo.) 43,  58,  312,  321,  322,  330, 

345,  360,  367,  508,  609,  717,  782,  793 

Black  V.  Appolonio  (Mont.) 22,  26,  306,  313,  577 

Blackburn  v.  Bell   (Cal.) 593 

Blackman  v.  Marsicauo   (Cal.) 23,  305,  346 

Blanshard  v.  Schwartz  (Old.).. 24,  84,  87,  350,  369,  609,  702,  730,  824 

Blasingame  v.  Home  Ins.  Co.  (Cal.) 654 

Blethen   v.   Blake    (Cal.) 189,  661,  793 

Blinn  L.  Co.  v.  Walker  (Cal.) 164,  235,  236,  237,  240,  241,  410 

Block  V.  Murray   (Mont.) 58,  234,  422,  423,  425 

Blumauer  v.  Clock  (Wash.) 36,  117,  572 

Blyth  V.  Eobinson  (Cal.) 256,  553,  563,  580,  665 

Blyth  V.  Torre     (Cal.) 238,  239,  561,  562,  665,  668,  699 

Blythe  v.  Poultney    (Cal.) 483,  516 

Board  of  Comm'rs  v.  Branham  (Fed.) 566 

Board  of  Education  v.  Blake    (Cal.)... 9,  154,  461,  509,  521,  523, 

524,  548,  549,  589,  729 

Board  of  Education  v.  Pressed  Brick  Co.   (Utah) 154 

Boas  V.  Maloney  (Cal.) 255,  469,  556,  559 

Bodders  v.  Davis   (Ala.) 164 

Bogan  V.  Eoy  (Ariz.) 158,  422,  533,  592 

Boggs  V.  Fowler  (Cal.) 400 

Bolster  v.  Stocks  (Wash.)  .  .320,  335,  336,  377,  579,  580,  632,  688, 

704,  717,  776 

Bonner  v.  Minnier  (Mont.) 19,  51,  425 

Booth   V.    Pendola    (Cal.) 2,  7,  19,  37,  229,  250,  300,  317,  358, 

360,  462,  530,  535,  586,  602,  627,  649,  674,  707,  738,  761 

Booths  V.  Squaw  Springs  W.  Co.  (Cal.) 258,  262,  272,  475,  740 

Boscow  V.  Patton  (Cal.) 293,  294,  382,  711 

Bottomly  v.  Eector  etc.  of  Grace  Church  (Cal.) 21,  83,  632,  633 

Boucher  v.  Powers  (Mont.) 486,  491,  583,  656,  667 

Bowen  v.  Aubrey   (Cal.) 198,  245,  409,  493,  495,  573,  574 

Boyce,  In  re   (Nev.) 36 

Boyle  V.  Mountain  Key  M.  Co.  (N.  M.).  .4,  8,  9,  10,  103,  110,  120, 

124,  316,  463,  828 

Boynton  Furnace  Co.  v.  Gilbert   (Idaho) 86,  247 

Brackett  v.  Banegas   (Cal.) 610,  751 

Bradbury  v.  Butler    (Colo.) 18,  585,  685,  733 

Bradbury  v.  Cronise     (Cal.) 657,  671,  672^  704,  752,  797 

Bradbury  v.  Idaho  &  O.  Land  Imp.  Co.  (Idaho).  .16,  22,  383,  743, 

767,  772 

Bradbury  v.  McHenry    (Cal.) 671,  696 

Bradford   v.   Dorsey   (Cal.) 595 

Brady  v.  Burke   (Cal.) 611 

Bragg  V.   Shain    (Cal.) 36,  561,  566,  661,  665 

Brainard   v.  McKenzie   (Colo.) 122,  131 

Branham  v.  Nye  (Colo.) 308,  334,  337,  602,  604,  609 

Bremen  v.  Foreman  (Ariz.) 416,  417,  751    764 


TABLE   OF    CASES.  Ixi 

Pages 

Biennan  v.  Clark     (Neb.) 566 

Brennan  v.  Swasey    (Cal.) 313,  342,  505,  575,  584,  591 

Bridges  v.  Thomas  (Okl.) 149,  674,  704 

Briggs  V.  Bruce     (Colo.) 750 

Briggs  V.  Hilton  (N.  Y.) 693 

Brill  V.  De  Turk  (Cal.).... 9,  27,  68,  208,  209,  210,  211,  409,  489, 

559,  657 
Bringham  v.  Knox    (Cal.)..  144,  229,  315,  352,  357,  360,  375,  396, 

403,  627,  706,  708 

Broad,   In   re    (Wash.) 36 

Brock  V.  Bruce     (Cal.) 17,  18,  19,  49,  585,  598 

Brock  V.  Williams    (Okl.) 75 

Brodek  v.  Farnum    (Wash.) 69,  175,  264,  288,  476,  551,  697 

Brooks  V.  Burlington  &  S.  W.  E.  Co.  (U.  S.) 35,  357,  406 

Brown  v.  Board  of  Education  (Cal.) 109,  156,  497 

Brown  v.  Everhard    (Wis.) 164 

Brown  v.  Harper    (Oreg.) 7,  21,  539 

Brown  v.  Olmstead  (Cal.) 576 

Brown  v.  Scott    (Cal.) 658 

Brown  v.   Welch  (N.  Y.) 717 

Brown  v.  Winehill   (Wash.) 189,  682 

Brown's  Exrs.  v.  Farnandis   (Wash.) 182,  184,  193,  797,  814 

Brubacker  v.  Bennett   (Utah) 49,  304,  338,  771 

Brunner  v.   Marks   (Cal.) 348,  403,  404,  646,  672,  713 

Bryan  v.  Abbott   (Cal.) 130,  147,  312,  322,  824,  334,  345,  640, 

643,  651,  675,  714 

Bryant  v.  Broadwell   (Cal.) 613,  629,  647,  695 

Bryson  v.  McCone    (Cal.) 64,  66,   82,  165,  268,  272,  291,  475, 

590,  647,  676,  798 

Bucher  v.  Thompson   (N.  M.) 362,  784 

Buckeye  M.  &  M.  Co.  v.  Carlson  (Colo.) 177 

Buckman  v.  Hatch   (Cal.) 708 

Buckout  V.  Swift   (Cal.) 152,  592 

Buell  &  Co.  V.  Brown  (Cal.) 341,  382,  383,  431,  715,  741 

Builders'  S.  D.  v.  O'Connor  (Cal.) 32,  48,  49,  77,  667,  768,  770,  771 

Bulwer  Con.  M.  Co.  v.  Standard  Con.  M.  Co.  (Cal.) 667 

Burke  v.  Dittus  (Cal.) 614,  620,  622,  623 

Burleigh  B.  Co.  v.  Merchant  B.  &  B.  Co.  (Colo.) 6,  10.  49,  273, 

284,  366,  388,  500,  oF)-),  593.  770,  774 

Burley  v.  Hitt  (Mo.) 566 

Burnett  v.  Ewing   (Wash.) 197 

Burnett  v.  Kirk     (Wash.) 197 

Burnett  v.  Stearns    (Cal.) 671 

Burns  v.  White  Swan  M.  Co.  (Orog.) 593,  599,  600 

Burrage  v.  Bonanza  G.  &  Q.  M.  Co.  (Orog.) 758 

Burris  v.  People's  Ditch  Co.   (Cal.) 658 

Burt  V.  Washington  (Cal.) 141 

Bush  V.  Lathrop  (N.  Y.) 518 

Butterworth  v.  Levy  (Cal.) 231,  238,  239,  499 


Ixii  TABLE    OF    CASES. 

G  Pages 

Cadenasso  v.  Aiitonelle  (Cal.) 89,  556,  559 

Cadwell  v.  Brackett  (Wash.) 61,  108,  124,  530 

Gaboon  v.  Fortune  M.  &  M.  Co.  (Utah) 371,  377,  447 

Cahoon  v.  Levy    (Cal.) 52,  447,  454,  461,  507,  508 

California  I.  Const.  Co.  v.  Bradbury  (Cal.) .  .  .  .227.  230,  232,  243, 

411,  471,  672.  746.  808 

California  M.  E.  Church  v.  Seitz  (Cal.) 182 

California  P.  W.  v.  Blue  Tent  Gonsol.  H.  G.  M.  (Cal.).  .60,  81,  87, 

90,  96,  146,  279,  296,  306,  311,  345,  379,  380,  391,  392,  619 

Calvert  v.  London  Dock  Co.  (Eng.) 567 

Camp  V.  Behlow    (Cal.) 230,  252,  254,  707,  792 

Camp  V.  Land    (Cal.) 698 

Camp  V.  Mayer    (Ga.) 31,     33 

Campbell  v.  Coon  (N.  Y.) 84 

Campbell  v.  Los  Angeles  G.  M.  Co.  (Colo.) 34,  49,  770 

Campbell  v.  Manu    (Hawn.) 218 

Campbell  v.  Vincent  (Wash.) 573 

Gampe  v.  Lassen  (Cal.) 671 

Canadian  &  A.  M.  &  T.  Co.  v.  Clarita  L.  &  I.  Co.  (Gal.) 756 

Cannon  v.  Williams    (Colo.) ..  .18,  23,  24,  306,  315,  367.  579.  715, 

757,  759 

Capital  L.  Co.  v.  Eyan  (Oreg.) 442,  456,  596,  725 

Capron  v.  Strout  (Nev.).41,  124,  170,  301,  392,  442,  456,  457,  458,  485 

Carey-Lombard  L.   Co.   v.   Partridge    (Utah) 21,  263,  376,  421, 

430,  449,  451,  464,  481,  515 

Carpenter  v.  Furrey   (Cal.) 47,  217,  219,  220,  552,  560.  708 

Carpenter  v.  Ibbetson    (Cal.) 196,  278,  695 

Carriere  v.  Minturn  (Cal.) 768 

Carson  Opera  House  Assoc,  v.  Miller  (Xev.) 564 

Gary  v.  Mclntyre  (Colo.) 271 

Gary  Hardware  Co.  v.  McCarty  (Colo.) 16,  22,  23,  24,  52,  153, 

271,  297,  348,  349,  350,  356,  383,  402,  422,  424,  585 

Casey  v.  Ault  (Wash.) 21 

Gasserly  v.  Waite  (Mich.) 727 

Castagnetto  v.  Coppertown  M.  &  S.  Co.  (Cal.) 25,  26,  123,  147, 

304,  305,  307,  310,  322,  328,  334,  336,  342,  344,  354,  763,  773, 

775,  782,  793,  803,  828 

Gastagnino  v.  Balletta  (Cal.) 182,  189,  283,  584,  618,  690,  705, 

726,  734,  735 

CatteU  V.  Fergusson  (Wash.) 528 

Cavanaugh  v.  Casselman  (Cal.) .555 

Cement  Co.  v.  Morrison  (N.  J.) :..... 35 

Central  etc.  Go.  v.  Condon  (Fed.) 717 

Central  L.  &  M.  Go.  v.  Burns  (Cal.) 492 

Central  L.  &  M.  Co.  v.  Center  (Cal.).  .422,  552,  583,  589,  771,  780,  791 
Chamberlain  v.  Hibbard  (Oreg.).. 69,  167,  182,  193,  195,  312,  314. 

366,  767 


TABLE    OF    CASES.  Ixili 

Pages 

Chambers  v.  Hannum  (Alas.) ; 19,  92,  699 

Chappius  V.  Blankman  (Cal.) 123,  12.5,  1.58,  409,  411,  420,  4.52,  676 

Charles  v.  Hallaek  L.  &  Mfg.  Co.  (Colo.) .  .273,  410,  608,  618,  6G1, 

682,  707,  793,  796,  799 

Chase  v.  Smith  (Wash.) 278 

Chehalis  County  v.  Ellinger  (Wash.) 320 

Chevret  v.  Mechanics'  M.  &  L.  Co.  (Wash.) 299,  586 

Chicago  L.  Co.  v.  Dillon    (Colo.) ..  .3.5,  41.  43,  321,  417,  421,  451, 

467,  529,  532 

Chicago  L.  Co.  v.  Newcomb   (Colo.) 4,  6,  8,  9,  16,  23,  35,  37, 

38,    39,    76,    162,    209,    217,  223,  231,  334,  338,  410,  480,  493, 

529,  711,  715 

Childs  L.  &  Mfg.  Co.  v.  Page  (Wash.).  173,  183,  620,  719,  810,  813,  816 

Chipman  v.  Emetic  (Cal.) 155 

Chivell  V.  Spring  Valley  G.  Co.   (Cal.) 773,  776 

Choynski  v.  Cohen   (Cal.) 595 

Christensen  v.  Hollingsworth  (Idaho) 585 

Christnot  v.  Montana  G.  &  S.  M.  Co.  (Mont.) 198,  301,  485 

Church  V.  Garrison   (Cal.) 40 

Church  V.  Smithea    (Colo.) 35,  397,  782 

City  and  County  of  Denver  v.  Hindry  (Colo.) 262 

City  Council  v.  Ormand  (S.  C.) 567 

City  of  Hamilton  v.  Stelwaugh  (Ohio) S9 

City  of  Los  Angeles  v.  Pomeroy   (Cal.) 791 

City  of  Seattle  v.  Smyth   (Wash.) 36 

City  of  Seattle  v.  Turner  (Wash.) 671 

City  of  Sterling  v.  Wolf  (111.) 559 

Clancy  v.  Plover   (Cal.) 70,  485,  486,  542,  575,  647,  665,  673, 

741,  770,  773,  774,  775 

Clark  V.  Brown  (Cal.) 585,  599 

Clark  V.  Collier    (Cal.) 171,  268,  276,  484,  796 

Clark   V.  Lindsay   (Mont.) 453 

Clark   V.  Parker     (Iowa) ' 398 

('l;irk    V.  Taylor     (Cal.) 664,  668,  772,  777 

Clarke  v.   Mohr   (Cal.) 790 

Clear  Creek  M.  Co.  v.  Root  (Colo.) 731,  753 

Cline  V.  Shell  (Oreg.) 60,  258,  672,  774 

Clough  V.  City  of  Sj)okane  (Wash.) 154 

Cochran  v.  Baker    (Or.  g.) 565,  580 

Cochran  v.  Balfe    (Colo.) 268,  270 

Cochran  v.  Yoho   (Wash.) 269,  651,  673 

Cockley  v.  Brueker  (Ohio) 109 

Cockrill  V.  Davie  (Mont.) 174,  554,  555 

Coggan  v.  Reeves  (Oreg.) 594,  600 

Cohn  v.  Wright  (Cal.).. 83,  291,  345,  632,  633,  636,  637,  638,  737,  738 

Ooleman  V.  Oregonian  R.Co.  (Oreg.) .  13,  17,  144,  413,  458,  461,  479,  526 
Collins  V.  Snoke  (Wash.) ..  .298,  308,  320,  321,  339,  349,  351,  355, 

530,  605 


Ixiv  tabijE  of  cases. 

Pages 

Colorado  Fuel  &  I.  Co.  v.  Eio  Grande  S.  R.  Co.  (Colo.) 615 

Colorado  Iron  Works  v.  Eiekenberg  (Idaho) ..  .2.5,  60,  62,  81,  83, 

87,  384,  743 

Colorado  I.  W.  v.  Taylor  (Colo.) 371,  394,  399,  419,  421,  533,  630 

Comptoir  D'Escomptc  v.  Dresbach  (Cal.) 576 

Conefield  v.  Polk  (Ind.) 82 

Congdon,  In   re    (Hawn.) 21S 

Conlee  v.  Clark  (Ind.) 193 

Continental  B.  &  L.  Assoc,  v.  Hutton  (Cal.).  .25,  33,  367,  524,  579, 

580,  744,  802 

Cook  V.  Columbia  O.  A.  &  E.  Co.  (Cal.) 171,  269 

Cook  V.  Gallatin  R.  Co.  (Mont.) 26,  49,  319,  585,  683,  730,  799 

Cooper  Mfg.  Co.  v.  Delahunt  (Oreg.) .  .160,  364,  365,  368,  456,  475, 

529,  608,  664,  787,  788 

Corbett  v.  Chambers   (Cal.) 5,  7,  16,  17,  25,  51,  293,  297,  304, 

307,  308,  310,  318,  321,  322,  323,  324,  325,  326,  344,  351,  363, 

375,  380,  467,  480,  503,  505,  524,  605,  614,  628,  630,  687,  717 

Corcoran  v.  Desmond   (Cal.) 791 

Cornell  v.  Conine-Eaton  L.  Co.   (Colo.).. 4,  16,  594,  604,  611,  731,  781 

Cornell  v.  Dunbar  Lumber  Co.  (Colo.) 451,  456 

Cors  V.  Ballard  I.  W.  (Wash.) 53 

Coss  V.   MacDonough    (Cal.).. 58,  73,  229,  273,  279,  364,  628,  638, 

685,  703,  713,  795,  796,  SOI 

Costillo  V.  McConnico  (U.  S.) 34 

Coulter,  In  re  (Fed.) 293,  458,  596 

Covell  V.  Washburn  (Cal.)... 70,  478,  488,  489,  493,  588,  664,  665, 

754,  769,  770,  773 

Cowen  V.  Griffith  (Cal.) 396 

Cowie  V.  Ahrenstedt  (Wash.) 294,  351,  357,  371,  659,  675,  687,  775 

Cowles  V.  United  States  F.  &  G.  Co.  (Wash.) .  .  .168,  193,  551,  558,  559 
Cox  V.  McLaughlin  (Cal.)..  172,  182,  185,  188,  270,  291,  587,  620, 

621,  692,  705,  720,  726,  738,  753,  755 

Cox  V.  Western  Pac.  E.  Co.   (Cal.) 67,  139,  172,  291,  293,  301, 

357,  403,  404,  587,  615,  621,  649,  650,  652 

Craig  V.  Geddis  (Wash.) 188,  275 

Crane  Co.  v.  ^tna  Indemnity  Co.  (Wash.) 153,  220,  370,  571 

Crane  Co.  v.  Pacific  H.  &  P.  Co.  (Wash.) 557 

Creer  v.  Cache  Valley  C.  Co.  (Idaho) 292,  406 

Cross  V.  Tscharnig    (Oreg.) 331,  418,  433,  534,  631 

Crowell  V.  Gilmore  (Cal.).  .  .421,  422,  448,  451,  452,  456,  457,  458, 

463,  538 
Crowley  v.  United  States  F.  &  G.  Co.  (Wash.).  .163,   194.  262,  551, 

557,  559,  560,  561,  569,  689,  812,  814 

C.  Scheerer  Co.  (Inc.)  v.  Deming  (Cal.) 289,  290 

Cullins  V.  Flagstaff  S.  M.  Co.  (Utah) 124 

Culmer  v.  Caine     (Utah) 75,  189,  247,  3.03,  310,  317,  361,  365, 

368,  371,  409,  452,  475,  593,  600,  626,  744,  750,  793 
Culmer  v.  Clift    (Utah) 21,  347,  356,  364,  376,  539,  661,  712,  754 


I 


TABLE    OF    CASES.  IXV 

Pages 

Cummings  v.  Ross  (Cal.) 163,  588,  701,  732 

Curnow  v.  Happy  Valley  B.  G.  &  H.  Co.  (Cal.) ...  .18,  19,  348,  540, 

585,  602,  G48,  657,  660,  704,  728,  732 

Curtis  V.  Richards    (Cal.) 658,  659 

Curtis  V.  Sestanovich    (Oreg.) .  .  .  136,  310,  314,  325,  326,  331,  376, 

384,  634,  636,  826 

Cutter  V.  Striegel  (Wash.) 416,  434,  631 

Cutting  Fruit  P.  Co.  v.  Canty  (Cal.) 753 

D 

Daley  v.  Russ  (Cal.) 617 

Dalles  L.  &  M.  Co.  v.  Wasco  W.  Mfg.  Co.  (Oreg.)  .  .22,  53,  300,  345, 

406,  580,  637 

Darlington-Miller  L.  Co.  v.  Lobsitz  (Okl.) 73,  83,  430,  796 

Davanay  v.  Eggenhoflf  (Cal.) 658 

Davidson  v.  Jennings  (Colo.)..  13,  16,  48,  160,  420,  479,  493,  699. 

770,  786 

Davidson  v.  Laughlin  (Cal.) 104 

Davies-Henderson  L.  Co.  v.  Gottschalk  (Cal.)... 9,  18,  45,  47,  52, 
61,  71,  78,  97,  2.55,  310,  344.  391,  426,  427,  449,  450.  452,  453, 
454,  455,  493,  499,  500,  508,  513,  515,  588,  606,  608,  628,  630, 

713,  759,  761,  786,  787 
Davis  V.  Alvord   (U.  S.)..8,  23,  114,  162,  300,  376,  399,  451,  457, 

585,  649,  682,  685,  687,  751 

Davis  V.  Big  Horn  L.  Co.   (Wyo.) 321,  322,  411,  622,  651 

Davis  V.  Bilsland   (U.  S.) 20,  451,  452,  539,  649 

Davis  V.  Johnson    (Colo.) 726 

Davis  V.  Livingston    (Cal.).. 22,  261,  311,  313,  332,  361,  505,  507, 

508,  509,  516,  523,  524,  525,  526,  598,  633,  717 
Davis  V.  MacDonough     (Cal.) .  .  .  .16,  17,  58,  59,  73,  95,  118,  120, 

136,  137,  251,  255,  296,  374,  377,  383,  384,  392 

Davis  V.  Mouat  L.  Co.   (Colo.) 35,  246,  586,  600,  605,  608 

Davis  V.  Treacy     (Cal.) 613 

Deacon  v.  Blodget  (Cal.) HI 

Dearborn  Foundry  Co.  v.  Augustine  (Wash.) 53,  159,  324,  732 

De  Boom  v.  Priestly  (Cal.) 616 

De  Camp  L.  Co.  v.  Tolhurst  (Cal.) 212,  491,  672,  729,  730,  769 

Decker  v.  Myles  (Colo.) 600,  605 

De  Haven  v.  McAuley   (Cal.) 130,  733,  803 

DeMattos  v.  Jordan   (Wash.) .  .  .  .68,  111,  165,  183,  189,  191,  258, 

291,  5.55,  565,  697 

Denison   v.   Burrell    (Cal.) 203,  205,  259,  476,  481,  483,  514 

Dennis  v.  Burritt  (Cal.) 447 

Denny  v.  Spurr  (Wash.) 551,  561 

Denver  v.  Hindry   (Colo.) 66 

Denver  H.  Co.  v.  Croke  (Colo.) 72.  505 

Denver  L.  &  S.  Co.  v.  Rosenfcld  Const.  Co.  (Colo.) 186 

Denver  S.  P.  &  P.  Co.  v.  Riley  (Colo.) 183 

Mecli.  Liens  —  E 


Ixvi  TABLE    or    CASES. 

Pages 

De  Prosse  v.  Eoyal  Eagle  Dist.  Co.  (Cal.) 109,  159,  584,  590 

Dexter  v.  Olsen  (Wash.) 368,  369 

Dexter,  H.  &  Co.  v.  Sparkman  (Wash.) 579 

Dexter,  H.  &  Co.  v.  Wiley    (Wash.) 579 

Devoe  v.  Superior  Court  (Cal.) 47 

Dibble  V.  De  Mattos  (Wash.) 563 

Dickenson  v.  Bolyer  (Cal.) 139,  338,  462 

Dickson  v.  Corbett  (Nev.) 420,  580,  585,  660,  765 

Dietz  v.  Mission  Transfer  Co.  (Cal.) 148 

Dillon  V.  Hart   (Oreg.) 311,  326,  327 

Diugley  v.  Greene  (Cal.) 75,  190,  245,  409,  410,  495,  514,  683 

Ditto  V.  Jackson  (Colo.) 246,  409,  624 

Doggett  V.  Bellows  (Cal.) 622 

Donahue  r.  Cromartie   (Cal.) 64,  81,  94,  121,  143,  403,  702 

Donegan  v.  Houston   (Cal.) 188,  615,  618,  636 

Donnelly  v.  Adams  (Cal.)..  164,  227,  228,  229,  232,  233,  234,  240, 

683,  692 
Donohoe  v.  Trinity  Consol.  G.  &  S.  M.  Co.  (Cal.) 40,  418,  439, 

534,  535,  610,  641,  678,  679,  746,  796 
Dore  V.  Sellers   (Cal.).. 7,  9,  78,  164,  205,  210,  410,  411,  412,  413, 

473,  484,  574 

Doremus  v.  Root  (Wash.) 561 

Douthitt  V.  MacCulsky  (Wash.) .  .320,  527,  561,  586,  605,  610,  722, 

728,  751,  752,  786 
Downing  v.  Graves  (Cal.)... 72,  118,  182,  193,  246,  247,  259,  260,  265 
Drumheller  v.  American  S.  Co.  (Wash.) 73,  177,  185,  187,  258, 

557,  558,  731,  807,  810,  812,  814,  818 

Duignan  v.  Montana  Club  (Mont.) 8,  73,  83,  87,  469,  608,  639 

Duncan  v.  Hawn  (Cal.) 18,  20,  539 

Dunlop  V.  Kennedy  (Cal.)..  15,  19,  53,  98,  159,  211,  212,  216,  223, 

228,  229,  237,  239,  447,  472,  481,  519,  585 

Durrell  v.  Dooner  (Cal.) 128,  130,  147,  636,  801 

Dusy  V.  Prudom  (Cal.) 750,  764,  766 

Dwyer  v.  Salt  Lake  City  Mfg.  Co.  (Utah) 7,  573,  797 

Dyer  v.  Middle  Kittitas  Irr.  Dist.  (Wash.) 164,   177,  185,  291, 

615,  684,  731 
E 

Eagle  Gold  Min.  Co.  v.  Bryarly  (Colo.) 20,  49,  538,  .541,  575, 

599,  600,  647,  727,  750,  771 

Eakins  v.  Frank   (Mont.) .• 561,  562 

Eaman  v.  Bashf ord  (Ariz.) 417,  532 

Earnshaw  v.  United  States  (U.  S.) 175 

Easterbrook  v.  Farquharson  (Cal.) 491,  753 

Eastham  v.  Western  Const.  Co.  (Wash.) : .  .177,  191,  684 

Easton  v.  O'Eeilly  (Cal.) 595.  603 

Eaton  V.  Malatesta     (Cal.) 93,  121,  344,  365,  423,  716,  721 

Eaton  V.  Eocca   (Cal.).. 89,  415,  493,  494,  532,  536,  632,  640,  672, 

721,  760,  763 


TABLE   OF    CASES.  Ixvii 

I'ages 
Eccles  L.  Co.  v.  Martin  (Utah).  .6,  9,  13,  16,  17,  21,  24,  160,  300, 

317,  358,  360,  417,  462,  463,  467,  530 

Eccleston  v.  Hetting   (Mont.) 62,  73,  74,  91 

Eclipse  S.  M.  Co.  v.  Nichols  (Utah) 376 

Ehlers  v.  Wannack   (Cal.) 110,  619,  709,  722.  739 

Ehrman  v,  Astoria  &  P.  E.  Co.  (Oreg.) 591,  786 

Eisenbeis  v.  Wakeman  (Wash.) 9,  84,  650,  758,  762 

Ekstrand  v.  Barth  (Wash.) 69,  282,  476,  61^,  683 

Elder  v.  Spinks  (Cal.) 641,  657 

Eldridge  v.  Fuhr  (Mo.) ^•^6 

Ellett  V.  Tyler  (111.) 398 

Elliot  V.  Koyal  Ex.  Assur.  Co.  (Eng.) 188 

Elliott  V.  Ivers  (Nev.) 609,  725,  730,  751 

Ellis  V.  Brisachcr  (Utah) 423,  425,  430,  450 

Ellis  V.  Eademacher  (Cal.) 671 

Ellison  V.  Jackson  W.  Co.  (Cal.) 4,  15,  42,  47,  142,  165,  403 

Ellsworth  V.  Layton  (Wash.) 378,  703 

El  Reno  E.  L.  &  T.  Co.  v.  Jennisou  (Okl.) 8,  347,  364,  369,  377, 

593,  596,  650,  668 

Elwell  V.  Morrow  (Utah) 17,  25,  292,  371,  572,  583,  603,  730 

Empire  L.  &  C.  Co.  v.  Engley  (Colo.) 23,  430,  456,  538,  601 

Enterprise  Hotel  Co.  v.  Book  (Oreg.) 258,  550,  557,  558,  565,  818 

Epley  V.  Scherer  (Colo.)   624 

Epplinger  v.   Kendrick    (Cal.) -'^f' 

Erickson  v.  Hochbrune   (Wash.) 699 

Ernst  V.  Cummings  (Cal.) 172,  268,  470,  560,  737 

Ernst  V.  Fox    (Wash.) ''19 

Estey  V.  Hallack  &  Howard  L.  Co.  (Colo.) 4,  493,  608,  751 

Etchas  V.     Orena  (Cal.) 658 

Evans  v.  Graden   (Mo.) •^*^*^ 

Evans  v.  Judson    (Cal.) 151,  434,  436,  444,  739.  776,  782 

Evans  v.  Young    (Colo.) 423,  424 

Everett  v.  Hart  (Colo.) 672,  701 

Exposition  Amusement  Co.  v.  Empire  State  Surety  Co.  (Wash.) ...   554 

F 

Fagan  v.  Boyle  I.  M.  Co.  (Tex.) 85 

Fairhaven  L.  Co.  v.  Jordan  (Wash.)  .  .  .  .19,  21,  260,  308,  311,  314, 

333,  334,  336,  339,  363,  583,  604,  687,  774,  799 

Falconio  v.  Larsen   (Oreg.) ' -^^ 

Fallon  V.  Worthington   (Colo.) 467 

Farmers'   &  M.  Bank  v.  Downey    (Cal.) l->9 

Farmers'   &  M.  Bank  v.  Kinsley    (Mich.) 554,  594 

Farmers'  L.  &  T.  Co.  v.  Candler  (Ga.) i:^9 

Farnham  v.  California  S.  D.  &  T.  Co.  (Cal.) .  .  .  .104,  379,  380,  449, 

753,  756,  770 

Far  West  O.  Co.  v.  Witmer  Bros.  Co.  (Cal.) 173,  178 

Fein  v.  Davis  (Wyo.) 152,  375,  586,  628,  759 


Ixviii  TABLE    OF    CASES, 

Pages 

Ferguson  v.  Miller    (Cal.) 457 

Ferguson  v.  Stephenson-Brown  L.  Co.   (Okl.) 24,  84,  303,  306, 

351,  384,  604,  629,  796,  824 

Fernandez  v.  Burleson  (Cal.) 93,  313,  348,  349,  350,  353,  368,  634 

Fidelity  &  D.  Co.  v.  Robertson  (Ala.) 564 

Fidelity  Mut.  L.  Assoc,  v.  Dewej'  (Minn.) 566 

Fields  V.  Daisy  G.  M.  Co.  (Utah) 170,  447,  451,  456,  597,  800 

Finane  v.  Las  Vegas  H.  &  I.  Co.  (N.  M.) 4,  16,  22,  25,  362,  363, 

585,  649,  688,  764 

Finch  V.  Turner  (Colo.) 757,  778,  780,  781 

First  Municipality  v.  Bell   (La.) 89 

First  Nat.  Bank  v.  Ferris  Irr.  Dist.  (Cal.) .  .  .90,  91,  140,  169,  172, 

254,  265,  268,  297,  507,  511,  516,  518,  523,  543,  589,  593,  596, 

666,  760,  761,  794 

Fischer  v.  Hanna   (Colo.) 123,  731 

Fish  V.  McCarthy  (Cal.) 157,  159 

Fisher  v.  Pearson    (Cal.) 620 

Fisher  v.  Tomlinson  (Oreg.) 80 

Fitch  V.  Applegate  (Wash.)  ..  .36,  48,  303,  447,  457,  549,  639,  650, 

771,  772,  836 

Fitch  V.  Howitt   (Oreg.) 84,  87,  384,  529,  579,  580,  682,  774 

Fitch  V.  Stallings    (Colo.) 538 

Fitzhugh  V.  Mason  (Cal.) 109,  110,  613,  740,  741 

Flagstaff  M.  Co.  v.  Cullins  (U.  S.) 23,  119,  120,  124 

Flandreau  v.  Downey  (Cal.) 456,  594,  614,  698 

Fleming  v.  Prudential  Ins.  Co.  (Colo.) 22,  130,  604,  609 

Flick  V.  Hahn's  Peak  &  E.  R.  C.  &  P.  M.  Co.  (Colo.)  .192,  275,  676,  807 

Flinn  v.  Mowry  (Cal.) 109,  130,  162,  168,  169,  258,  270,  290, 

479,  492,  683,  726,  733 

Florence  O.  &  E.  Co.  v.  Eeeves  (Colo.) 587 

Florman  v.  School  Dist.  (Colo.) 4,  16,  66,  1-54.  521,  522 

Flynn  v.  Dougherty  (Cal.) 64,     85 

Folsoni  V.  Cragen   (Colo.) 429,  457 

Forbes  v.  Willamette  Falls  Electric  Co.  (Oreg.).  140,  702,  753,  754,  774 
Ford  V.  Springer  L.  Assoc.  (X.  M.) 4,  16,  25,  26,  142,  189,  196, 

199,  303,  306,  307,  312,  324,  332,  340,  348,  350,  397,  434,  585, 

609,  635,  645.  662,  667,  762,  765,  796,  801 

Forest  Grove  D.  &  L.  Co.  v.  MePherson  (Oreg.) 376,  384 

Foster  v.  Gaston  (Ind.) 566 

Fox  V.  Xachtsheim    (Wash.) .' 586,  786 

Frank  v.  Chosen  Freeholders  (N.  J.) 508 

Frank  v.  Jenkins   (Wash.) 601,  751 

Franklin  v.  Schultz  (Mont.) 199,  274,  276,  284 

Fratt  V.  Whittier  (Cal.) ' 149 

Frazer  v.  Barlow  (Cal.) 654 

Frazier  v.  Murphy  (Cal.)  .• 698 

Freeman  v.  Carson  (Minn.) ; 398 


TABLE   OF    CASES.  Ixix 

Pages 

French  v.  Powell   (Cal.) 91,  219,  264,  370,  377,  378,  461,  480, 

506,  509,  521,  522,  523,  545 

Fresno  C.  &  I.  Co.  v.  Waruer  (Cal.) 698 

Fresno  L.  &  S.  Bank  v.  Husted  (Cal.) 152,  439 

Fresno  M.  Co.  v.  Fresno  C.  &  I.  Co.  (Cal.) 178 

Friend  v.  Ealston  (Wash.)  .  .470,  551,  557,  560,  561,  812,  813,  814,  818 

Frisch  v.  Caler  (Cal.) 595 

Front  Street  C.  E.  Co.  v.  Johnson  (Wash.) 144,  152,  319,  416 

Front  Street  M.  &  O.  E.  Co.  v.  Butler  (Cal.) Ill 

Frowenfeld  v.  Hangings  (Cal.) 16 

Fulkerson  v.  Kilgore  (Okl.) 527,  593 

Fuller  (W.  P.)  &  Co.  v.  Eyan.    See  W.  P.  Fuller  &  Co.  v.  Eyan. 

Fnquay  v.  Stickney  (Cal.) 40,  442,  444 

G 

Gaines  v.  Childers  (Oreg.) 447,  609,  610,  782 

Gamache  v.  South  School  Dist.  (Cal.) 67,  269,  656,  741,  751 

Gamble  v.  Voll  (Cal.) 45,  263,  460,  610,  701,  754,  765,  782 

Ganahl  v.  Weir  (Cal.) 208,  258,  519,  546,  566,  572,  623 

Gardner  v.  Tatum  (Cal.)   109 

Garland  v.  Bear  L.  &  E.  W.  &  Irr.  Co.  (Utah) 9,  44,  136,  142, 

185,  293,  295,  314,  416,  451,  456,  457,  458,  577,  584 

Garland  v.  McMartin    (Utah) 191,  588 

Garneau  v.  Port  Blakeley  M.  Co.  (Wash.) 44,  375,  687,  702 

Garner  v.  Van  Patten  (Utah) 360,  462,  802 

Gaskill  V.  Moore  (Cal.) 448,  450 

Gaskill  V.   Trainer   (Cal.) : 424.  425 

Gates  V.  Brown    (Wash.) 26,  294,  314,  333,  338,  343,  362,  371 

Gates  V.  Fredericks   (Ariz.) 420,  422,  423,  532,  533 

Gato  V.  Warrington  (Fla.) 559 

Gaty  V.  Casey  (111.) 84,  398 

Gaylord  v.  Laughhridge  (Tex.) 89 

General  F.  &  E.  Co.  v.  Schwartz  Bros.  Com.  Co.  (Mo.) 193 

Genest  v.  Las  Vegas  Masonic  Bldg.  Assoc.  (N.  M.) .  .  .9,  13,  15,  16, 

19,  26,  48,  84,  274,  362.  386,  771,  774 

Georges  v.  Kessler  (Cal.) ..  .347,  638,  639,  654,  655,  688,  714,  719,  796 

Gerino,  Ex  parte   (Cal.) 107 

German  Nat.  Bank  v.  Elwood  (Colo.) 605 

Germania  B.  &  L.  Assoc,  v.  Wagner  (Cal.).  .33,  284,  328,  343,  450, 

453,  454,  548,  577,  664,  667,  826 

Getty  V.  Ames  (Oreg.) 309,  316,  326,  327,  580 

Giant  Powder  Co.  v.  Oregon  Pac.  E.  Co.  (Fed.) 90,  139,  140, 

144,  403,  406,  407 
Giant  Powder  Co.  v.  San  Diego  F.  Co.  (Cal.).  .16,  52,  53,  90,  124, 
130,  142,  143,  229,  230,  242,  250,  251,  256,  266,  267,  280,  281, 

283,   384,  499,  605,  607,  609,  637.  649,  650,  686,  724,  760,  762 
Gibbs  V.  Tally  (Cal.).. 32,  37,  38,  47,  218,  219,  245,  255,  478,  495, 

531,  538,  552,  589,  680 


IXX  TABLE    OF    CASES. 

Pages 
Gibson  v.  Wheeler  (Cal.)  •  •  ■  •  19,  164,  411,  493,  510,  514,  527,  624, 

629,  721,  722,  741,  760 

GUchrist  V.  Helena  H.  S.  &  S.  E.  Co.  (Fed.) 48,  119,  585,  750 

Gilliam  v.  Black  (Mont.) 588,  604,  608,  757,  760 

Gilliam  V.  Brown  (Cal.) 162,  175,  258,  284,  696,  704,  725,  731 

Glenn  County  v.  Jones  (Cal.) 564,  566,  567 

Gnekow  v.  Confer  (Cal.) 229,  254,  493,  494.  757,  760 

Goddard  v.  Fulton  (Cal.) 658 

Godeffroy  v.   Caldwell    (Cal.) 89,  429,  559 

Golden  Gate  L.  Co.  v.  Sahrbaclier  (CaL) .  .  .270,  274,  276,  291,  335, 

342,  346,  481,  587,  694,  757,  768 

Goodale  v.  Coffee  (Oreg.) 600,  609 

Goodrich  L.  Co.  v.  Davie  (Mont.) 347,  584,  688,  758 

Gordon  v.  Canal  Co.   (Fed.) 738 

Gordon  v.  Deal  (Oreg.) 8,  16,  25,  303,  306,  318,  319,  325 

Gordon  v.  South  Fork  C.  Co.  (Fed.) 41,  311,  348,  360 

Gordon  H.  Co.  v.  San  Francisco  &  S.  E.  E.  Co.  (Cal.) 89,  264, 

318,  332,  342,  343,  384,  580,  734,  737 

Gorton  v.  Ferdinando  (Cal.) 603 

Goss  V.  Helbing  (Cal.) 94,  121,  143,  456,  532.  672,  798 

Goss  V.  Strelitz    (Cal.) 198,  298,  312,  335,  344,  353,  365.  368, 

485,  595.  634 

Gottstein  v.  Seattle  L.  &  C.  Co.  (Wash.) 563,  699 

Gould  V.  Barnard   (Mont.) 119,  479 

Gould  V.  Wise    (Nev.) 51.  122,  399.  434,  4.35,  439 

Grain  v.  Aldrich  (Cal.) 485 

Grand  Opera  House  Co.  v.  McGuire  (Mout.) 450,  460,  764,  782 

Grangers'  Business  Assoc,  v.  Clark   (Cal.) 708 

Grant  v.  Sheerin   (Cal.) 708 

Graves  v.  Merrill    (Minn.) 566 

Graves  v.  Mono  Lake  H.  M.  Co.  (Cal.) 159 

Gray  v.  Jones  (Oreg.) 7,  264,  573.  574 

Gray  v.  La  Societe  Fran^-aise  de  B.  M.  (Cal.).  .169,  182.  191,  194, 

195,  264,  807 

Gray  v.  School  Dist.  (Neb.) 566 

Gray  v.  Wells    (Cal.) 192,  269,  539,  602,  743,  796 

Gray's  Harbor  C.  Co.  v.  Wotton  (Wash.) 787 

Great  Western  Mfg.  Co.  v.  Hunter  (Neb.) 84 

Greeley  S.  L.  &  P.  E.  Co.  v.  Harris  (Colo.) 4,  16,  17,  24,  26,  505 

Green  v.  Berge    (Cal.) • 786 

Green  v.  Chandler     (Cal.) 644,  645,  673,  741 

Green  v.  Clifford   (Cal.) .  .  .  .287,  465,  550,  606,  607,  608,  649,  722, 

727,  793 

Green  v.  Jackson  W.  Co.  (Cal.) . :  .119,  594,  599 

Green  v.  Palmer  (Cal.) 614,  617 

Greene  v.  Finnell  (Wash.)  . 310,  333,  369,  603,  687,  688,  725 

Gregory  v.  Nelson  (Cal.) - 671 

Greig  V.  Eiordan  (Cal.) 164,  233,  236,  238,  239,  246,  260 


TABLE    OF    CASES.  Ixxi 

Pages 

Gribble  V.  Columbus  B.  Co.  (Cal.) 658 

Griffin  v.  Hurley   (Ariz.) 419,  o33,  843 

Griffin  v.  Seymour    (Colo.) 6,  42,  124,  160,  169,  419,  468,  620 

Griffith  V.  Grogan    (Cal.) o"6 

Griffith  V.  Happersberger  (Cal.)... 69,  78,  154,  190,  200,  269,  274, 

275,  607,  619,  661,  665,  667,  697,  741,  744 

Griffith  V.  Maxwell  (Wash.) 48,  338,  349,  351,  530,  624,  629, 

632,  639,  647,  713,  733,  771,  772,  786 

Griffith  V.  New  York  Life  Ins.  Co.  (Cal.) 573 

Griffith  Co.  (J.  M.).  V.  City  of  Los  Angeles.     Sec  J.  M.  Griffith  Co. 
V.  City  of  Los  Angeles. 

Grissler,  In  re  (Fed.)   546,  598,  725 

Griswold   v.   Pieratt    (Cal.) 664 

Gritman  v.  United  States  F.  &  G.  Co.  (Wash.) 188,  555,  684,  750 

Groth  V.  Stahl  (Colo.) 409,  495,  671 

Gunst  V.  Las  Vegas  M.  B.  Assac.  (N.  M.) 600 

Gutshall  V.  Kornaley  (Colo.) 34,  362,  431,  655 

Guy  V.  Carriere    (Cal.) 418,  423,  459 

Guy  V.  Du  Uprey  (Cal.) ' 157 

H 
Haekfeld  v.  Hilo  E.  Co.   (Hawn.) .  .  .  .4,  13,  18,  74,  83,  84,  89,  98, 

144,  160,  178,  409,  559,  572,  599,  674 

Hadley  Co.  v.  Cummings  (Ariz.) 419,  422 

Hagman  v.  Williams  (Cal.) 26,   118,  305,  658,  6.-)9,  694,  724,  773 

Hale  Bros.  v.  Milliken  (Cal.) 591,  672,  676,  685,  695 

Hall  V.  Glass  (Cal.) 549 

Hall   V.  Law  Guarantee  &  T.  8oe.  (Wash.) 149 

Halleck  v.  Bresnahen  (Wyo.) 475,  568,  590 

Hamilton  v.  Delhi  M.  Co.  (Cal.).. 7,  82,  83,  87,  96,  153,  359,  399, 

409.  434,  439.  456,  462,  603,  704,  738,  745 

Hamilton  v.  Woodworth  (Mont.) 564 

Hampton  v.  Christensen   (Cal.).. 27,  32,  33,  47,  97,  211,  21.5,  216, 
219,  244,  248,  249,  472,  473,  474,  480,  481,  490,  547,  667,  791, 

803,  809 

Hampton  v.  Truckee  C.  Co.  (Fed.) 18,  430,  599 

Hand  Mfg.  Co.  v.  Marks  (Oreg.) 197.  561,  562,  564,  565,  567, 

574,  582,  608,  725,  787,  818 

Hanna  v.  Barker  (Colo.) 658 

Hanna  v.  Colorado  Sav.  Bank  (Colo.) 4,   16,  23,  315,  538,  614 

Hanna  v.  Mills  (N.  Y.) 617 

Hannan  v.  McNickle  (Cal.) 175 

Hanson  v.  Cordano  (Cal.) 197,  270 

Harlan  v.  Rand   (Pa.) 86,  247 

Harlan   v.  Stufflebeom    (Cal.) lis,  273,  274,  275,  276,  422,  434, 

587,  630,  704,  740,  777,  795 

Hannon  v.  Ashmead    (Cal.) 284,  306,  311,  312,  324,  367,  4.56, 

595,  622,  642,  681 


Ixxii  TABLE    OF    CASES. 

Harmon  v.  San  Francisco  &  S.  E.  E.  Co.  (Cal.).  .  .89,  91,  132,  264, 

318,  327,  343,  367,  376,  383,  510,  579,  727,  795,  802 

Harness  v.  McKee-Brown  L.  Co.  (Old.) 77,  87,  672,  731 

Harnish  v.  Bramer  (Cal.) 708 

Harrington  v.  Johnson   (Wash.) 605,  779 

Harrington  v.  Miller  (Wash.) ..  .321,  324,  423,  586,  605,  610,  728,  751 

Harris  v.  Faris-Kesl  Const.  Co.   (Idaho) 278,  291,  695 

Harris  v.  Harris  (Colo.) 306,  315,  316,  338,  492,  711,  726 

Harrisburg  L.  Co.  v.  Washburn  (Oreg.) 141,  148,  196,  275,  276, 

344,  345,  351,  355,  367,  384,  421,  453,  458,  534,  579,  580,  753.  774 

Harrison  v.  MeCormick  (Cal.) 693 

Hart  V.  Mullen   (Colo.) 377,  384,  609,  757 

Haskell  v.  McHenry  (Cal.) 109 

Hatcher  r.  United  States  L.  Co.  (Colo.) 423 

Havens  v.  Donahue  (Cal.) 112 

Haxtun  S.  H.  Co.  v.  Gordon  (N.  D.) 442,  458 

Head  v.  Pordyce  (Cal.) 142 

Heald  v.  Hodder  (Wash.) 300,  304,  317,  331,  339.  572 

Hcffernan  v.  United  States  F.  &  G.  Co.  (Wash.) 561 

Heinlen  v.  Erlanger  (Cal.) 613 

Helena  L.  Co.  v.  Montana  Cent.  E.  Co.   (Mont.) 644 

Helena  S.  H.  &  S.  Co.  v.  Wells  (Mont.) 48,  170,  384,  399,  704, 

740,  771 

Helm  V.  Chapman   (Cal.) 94,  96,  125,  127,  139,  140,  146,  408 

Helm  V.  Gilroy  (Oreg.)   151 

Henderson  L.  Co.  v.  Gottschalk  (Cal.) 634 

Hendrie  &  B.  Mfg.  Co.  v.  Holy  Cross  G.  M.  &  M.  Co.  (Colo.) 419 

Hendrie  &  B.  Mfg.  Co.  v.  Parry  (Colo.) 157,  409 

Hendy  v.  Dinkerhoff   (Cal.) 143,  400 

Hendy  M.  W.  v.  Pacific  Cable  C.  Co.  (Oreg.) 355 

Henley  v.  Wadsworth  (Cal.). 22,  245,  246,  263,  409,  484,  495,  514,  696 

Hennessey  v.  Fleming  Bros.  (Colo.) 192 

Henry  v.  .^tna  I.  Co.  (Wash.) 558 

Henry  v.  Flynn    (Wash.) 558,  561 

Henry  v.  Hand    (Oreg.) 167,  172,  177,  199,  451,  559,  561,  569,  818 

Herrick  v.  Belknap  (Vt.) 188 

Heston  v.  Martin  (Cal.) 313,  342,  505 

Hicks  V.  Murray    (Cal.) 36,  40,  311,  322,  342,  361,  505,  615, 

628,  629,  671 

Higgins  V.  California  P.  &  A.  Co.  (Cal.) : 676 

Higgins  V.  Carlotta  G.  M.  Co.  (Cal.) 42,  116,  124,  419,  433,  436 

High  V.  Dunn  (Hawn.) 188 

Hildebrandt  v.  Savage  (Wash.) . 650,  758,  759 

Hill  V.  Bowers     (Kan.) ". 738 

Hill  V.  Cassidy    (Mont.) 776,  791 

Hill  V.  Clark  (Cal.) 770 

Hill  V.  Den   (Cal.) .• 671 

Hill  V.  Grigsby    (Cal.) 591 


TABLE    OF    CASES.  Ixxiii 

Pages 

Hill  V.  Gwin  (Cal.) 592 

Hill  V.  La  Crosse  &  M.  E.  Co.  (Wis.) 404 

Hills  V.  Ohlig  (Cal.) 311,  345 

Himmelmann  v.  Spanagel  (Cal.) 708 

Hinckley  v.  Field's  B.  &  C.  Co.  (Cal.) ...  .51,  55,  58,  63,  64,  66,  80, 

81,  85,  105,  143,  165,  380,  417,  421,  467,  629 
Hines  v.  Miller  (Cal.).  .127,  161,  417,  435,  436,  437,  438,  439,  441, 

444,  527,  530,  629,  631,  633,  675,  680,  753,  754,  762,  763 

Hinkel  v.  Donohue  (Cal.) 790 

Hoagland  v.  Lowe  (Neb.)   448 

Hobbs  V.  Spiegelberg  (N.  M.).  .  .8,  22,  73,  307,  312,  314,  410,  530, 

546,  585,  586 

Hobkirk  v.  Portland  N.  B.  Club  (Oreg.) 158,  376,  420 

Hocker  v.  Kelley  (Cal.) 731,  751 

HoflPman-Marks  Co.  v.  Spires   (Cal.) 289,  290 

Hogan  V.  Bigler   (Cal.) 318,  326 

Hogan  V.  Globe  Mut.  B.  &  L.  Assoc.  (Cal.) 3,  196,  212,  268,  487 

Hogan  V.  Shields  (Mont.)    162 

Holden  v.  Hardy  (U.  S.) 35 

Holland  v.  Wilson  (Cal.) 164,  233,  252,  588,  663,  801 

Holmes  v.  Mello    (Hawn.) 617 

Holmes  v.  Eichet  (Cal.) 83,  182,  188,  195,  196,  199,  606,  632, 

633,  667,  737,  750 

Holt  V.  Bergevin   (Idaho) 599 

Holter  (A.  M.)  H.  Co.  v.  Ontario  M.  Co.     See  A.  M.  Holter  H.  Co. 
V.  Ontario  M.  Co. 

Honie  S.  &  L.  Assoc,  v.  Burton  (Wash.) 452,  459,  549 

Houeyman  v.  Thomas  (Oreg.) 151,  153 

Hooper  v.  Fletcher    (Cal.) 492,  733,  753,  755,  777,  807 

Hooper  v.  Flood     (Cal.) 23,  305,  322,  330,  333,  345,  346,  605, 

606,  632,  648,  654,  721 

Hooper  v.  Lincoln  (Hawn.) 605 

Hooven  v.  Featherstone  (Nev.) 199 

Hopkins  v.  Jamieson-Dixon  M.  Co.  (Wash.).  .  .41,  44,  62,  117,  299, 

320,  326,  333,  339,  345,  347,  361,  362,  759 

Horn  V.  Jones   (Cal.) 47,  142,  403,  601,  611,  698 

Horn  V.  United  States  Min.  Co.  (Oreg.) 7,  293,  378,  800 

Hotaling  v.  Cronise  (Cal.) 348,  450 

Houghton  V.  Blake    (Cal.) 83,  632,  633,  701 

Houghton  V.  Hotel  Co.   (N.  M.) 4,  585 

Howe  V.  Schmidt  (Cal.) 75,  86,  99,  228,  260,  743,  798 

Hoyt,  In  re  (Fed.) 463 

H.  Eaphael  Co.  v.  Grote  (Cal.) 290,  770 

Hubbard  v.  Lee  (Cal.) 499,  500,  515,  561,  672 

Huber  v.  St.  Joseph's  Hospital   (Idaho) .  .177,  181,  191,  534,  683, 

685,  773 

Hudson  V.  McCartney  (Wis.) 268 

Huetter  v.  Redhead  (Wash.) 291,  365,  673,  754 


Ixxiv  TABLE   OF    CASES. 

Pages 

Hiiggins  V.  Sutherland  (Wash.) 220,  521 

Hughos  V.  Bravinder    (Wash.) 183,  184,  195 

Hughes  V.  Gibson    (Colo.) 560 

Hughes  V.  Lansing  (Oreg.)...7,  198,  294,  304,  470,  491,  573,  580,  661 

Hughes  Bros.  v.  Hoover  (Cal.) 15,  17,  32,  33,  262,  293,  371, 

387,  388,  389,  462,  477,  512,  593,  594,  596,  667 

Humboldt  L.  M.  Co.  v.  Crisp  (Cal.) 3,  7,  9,  12,  13,  14,  15,  97, 

L51,  398,  484,  493,  588,  759 

Hume  V.  Robinson  (Colo.) 608,  758,  760 

Humphrey  v.  Hunt  (Okl.) 786 

Humphreys  v.  McCall  (Cal.) 658 

Hunt  V.  Darling  (R.  I.) 17 

Hunt  V.  Maldonado   (Cal.) 157 

Hunter  v.  Cordon   (Oreg.) 434,  529,  631 

Hunter  v.  Savage  Consol.  M.  Co.   (Nev.) 41 

Hunter  v.  Savage  Consol.  S.  M.  Co.  (Xev.) 122 

Hunter  v.  Truekee  Lodge   (Nev.) 23,  306,  311,  369,  374,  377, 

410,  495,  514,  573,  586,  615,  624,  730 
Huttig  Bros.  Mfg.  Co.  v.  Denny  Hotel  Co.  (Wash.) .  .2,  53,  88,  199, 

289,  362,  378,  452,  453,  457,  575 

I 

Idaho  &  O.  L.  Imp.  Co.  v.  Bradbury  (U.  S.) 585,  732 

Idaho  Comstock  M.  &  M.  Co.  v.  Lundstrum  (Idaho) 128 

Idaho  G.  M.  Co.  v.  Winchell  (Idaho) 40,  160,  416,  535,  577,  750 

Idaho  M.  &  M.  Co.  v.  Davis  (Fed.). 23,  128,  359,  360,  392,  399,  464.  796 

Ihrig  V.  Scott  (Wash.) 153 

Iliff  V.  Forssell   (Wash.) 421^  434 

Inman  v.  Henderson   (Oreg.) 62,  74,  81,  376,  451,  453 

Installment  B.  &  L.  Co.  v.  Wentworth  (Wash.) 327,  586,  732 

International  B.  &  L.  Assoc,  v.  Fortassain  (Tex.) 89 

Inverarity  v.  Stowell  (Oreg.) 782 

Irby  v.  Phillips  (Wash.) 719,  726,  802 

Ivall  V.  Willis  (Wash.) 48,  771 

J 

James  River  L.  Co.  v.  Danner  (N.  D.) 448 

Jarvis  v.  State  Bank   (Colo.) 457,  481,  574 

Jenne  v.  Burger  (Cal.) 576,  677,  746 

Jennings  v.  McCormick  (Wash.) 187 

Jensen  v.  Brown  (Colo.) 246,  516,  624 

Jerome  v.  Stebbins  (Cal.) 614,  617 

Jewell  V.  McKay  (Cal.) 50,  163,  292,  304,  305,  308,  309,  310, 

313,  327,  334,  335,  336,  337,  341,  345,  367,  412,  434,  505,  506, 

526,  631,  635,  773 

Jewett  v.  Darlington   (Wash.  Tcr.) 447,  687 

J.  M.  Griffith  Co.  v.  City  of  Los  Angeles  (Cal.) 169,  'l95 

John  A.  Roebliug's  Sons  Co.  v.  Humboldt  E.  L.  &  P.  Co.  (Cal.) 797 


TABLE   OP    CASES.  IxXV 

Pages 

Johnson  v.  Boudry  (Mass.) '-53 

Johnson  v.  California  L.  Co.   (Cal.) I'iS 

Johnson  v.  Dewey   (Cal.) 58,  422,  423,  494 

Johnson  v.  Goodyear  M.  Co.  (Cal.) 34,     35 

Johnson  v.  La  Grave  (Cal.) 246,  260,  264,  285,  387,  388,  465, 

495,  542,  546 

Johnson  v.  McClure  (N.  M.) 110,  120 

Johnson  v.  Puritan  M.  Co.  (Mont.) 450,  458,  751 

Johnston  v.  Bennett   (Colo.) 4,  16,  19,  430,  593,  604,  610 

Tohnston  v.  Harrington  (Wash.) .  . .  16,  86,  294,  304,  311,  314,  363, 

371,  705 

Jones  V.  Childs  (Nev.) 564 

Jones  V.  Frost    (Cal.) 595 

Jones  V.  Great  Southern  F.  H.  Co.  (Fed.) 36,  216 

Jones  V.  Kruse  (Cal.)  ...42,  91,  230,  305,  326,  364,  387,  388,  713,  738 

Jones  V.  Shuey  (Cal.) 268,  422,  532,  714,  720 

Joost  V.  Sullivan   (Cal.) 27,  209,  226,  228,  229,  230,  234,  235, 

236,  238,  239,  240,  256,  272,  280,  282,  376,  383,  386,  686,  706, 

707,  797 

Joralmon  v.  McPhee  (Colo.) 16,  19,  35,  37,  287,  312,  447,  448, 

457,  459,  491,  585,  701,  751,  766,  778,  800,  802 

Jordan  v.  Myres  (Cal.) 138,  143,  149,  153,  400,  401,  409,  441 

Jorgensen  Co.  v.  Sheldon  (Alas.).  .4,  16,  24,  25,  28,  303,  306,  383, 

593,  599,  604,  614,  636,  639 
Joshua  Hendy  Machine  Works  v.  Pacific  Cable  Const.  Co.  (Oreg.)   713 

Judah  v.  Zimmerman  (Ind.) 556 

Judson  V.  Malloy  (Cal.) 289 

Jurgensen  v.  Diller  (Cal.) 40,  94,  126,  436,  437,  439,  440,  443, 

534,  535,  575,  679 
Justice  V.  Elwert  (Oreg.) 118,  190,  269,  270,  476,  797 

K 

Kair,  Ex  parte   (Nev.) 36 

Kalkmann  v.  Baylis  (Cal.) 617 

Kansas  City  M.  &  B.  R.  Co.  v.  Eobertson  (Ala.) 485 

Keene  G.  S.  Bank  v.  Lawrence  (Wash.) 452 

Keener  v.  Eagle  Lake  L.  &  L  Co.  (Cal.) 17,  3-5,  297,  384,  601, 

635,  772 

Kelley  v.  Plover  (Cal.) 3.35,  346,  661,  725,  742,  794 

Kellogg  V.  Howes  (Cal.) 35,  36,  37,  38,  58,  76,  231,  244,  245, 

251,  253,  254,  255,  483,  493,  495,  496,  497,  498,  499,  505,  507, 

514,  515,  624,  761 
Kellogg  V.  Littell  &  Smythe  Mfg.  Co.  (Wash.) .  .  .26,  35,  144,  152, 

355,  357,  416,  754,  759,  760 

Kelly  V.  Lemberger  (Cal.) 323,  324,  325,  688,  717,  794 

Kendall  v.  McFarland  (Oreg.) 22,  451,  453,  620,  750,  778 

Kennedy  &  Shaw  L.  Co.  v.  Duscnbery  (Cal.)... 68,  492,  493,  547, 

548,  729,  748,  758,  760,  769 


Ixxvi  TABLE   OP    CASES. 

Pages 

Kennedy  &  Shaw  L.  Co.  v.  Priet  (Cal.) 68,  546,  547,  548,  729 

Kennedy  L.  &  O.  Co.  v.  New  Albany  W.  W.  (Ind.) 143 

Kennedy-Shaw  L.  Co.  v.  Priet  (Cal.)... 53,  71,  492,  493,  748,  756, 

758,  798 

Kent  V.  Richardson  (Idaho) 796 

Kent  L.  Co.  v.  Ward  (Wash.) 543,  562 

Kerby  v.  Daly  (N.  Y.) 89 

Kerckhoff-Cuzner  M.  &  L.  Co.  v.     Curaniings     (Cal.) .  .  .  .203,  204, 

205,  496,  510,  514,  516,  662 

Kerchkoff-Cuzner  M.  &.  L.  Co.  v.  Olmstead  (Cal.) 41,  44,  62, 

81,  285,  286,  377,  386,  388 

Kettles  V.  People  (111.) 107 

Keystone  M.  Co.  v.  Gallagher  (Colo.).  .  .89,  90,  408,  451,  453,  497, 

600,  778 

Kezartee  v.  Marks   (Oreg.) 8,  27,  52,  300,  315,  319,  325,  345, 

348,  351,  363,  580 

Kiene  v.  Hodge   (Iowa) 448 

Kiessig  v.  Allspaugh   (Cal.) 219,  229,  256,  267,  553,  554,  564, 

566,  568,  588,  700,  818 

Kilroy  v.  Mitchell  (Wash.) 586,  736 

Kimball  W.  W.  Co.  v.  Baker  (Wis.) 567 

Kinsey  v.  Wallace  (Cal.) 595 

Kirschbaum  v.  Blair  (Va.) 567 

Klokke  V.  Raphael  (Cal.) 614,  647,  724 

Knight  V.  Roche  (Cal.) 737 

Knowles  v.  Baldwin     (Cal.) 199,  215,  389,  596,  652,  755 

Knowles  v.  Joost  (Cal.) 508,  514,  795 

Knudson-Jacob  Co.  v.  Brandt  (Wash.) ..  .18,  84,  88,  572,  671,  673, 

681,  792,  799 

Koerner  v.  Willamette  I.  W.  (Oreg.) 610 

Kremer  v.  Walton  (Wash.) 417,  423,  532,  533,  629 

Kreuzberger  V.  Wingfield  (Cal.)..  118,  129,  130,  163,  166,  223,  226,  693 

Kruegel  v.  Kitchen  (Wash.) 680,  708,  769 

Kruse  v.  Wilson  (Cal.) 71,  76,  98,  154,  502,  510,  548,  591 

Kuback,  Ex  parte  (Cal.) 36 

Kiihlman  v.  Burns  (Cal.) 233,  254,  492,  535,  588,  706,  707 

Kurtz  V.  Forquer  (Cal.) 554,  555,  590,  655,  690,  723 

Kusehel  v.  Hunter   (Cal.) 17,  297,  442,  457,  458,  635 

Kutehin  v.  Engelbret  (Cal.) 109 

L 

Lacore  v.  Leonare  (Cal.) 756 

Lada  v.  Hawley  (Cal.) 109 

La  Grill  v.  Mallard  (Cal.) 55,  57,  59,  62,  63,  64,-  118,  341,  383 

Laidlaw  V.  Marye  (Cal.) 51,  70,  168,  169,  176,  229,  230,  251, 

252,  253,  254,  256,  274,  694,  706,-707 

Laidlaw  v.  Portland  V.  &  Y."  R.  Co.  (Wash.) 47,  144,  220,  370 

Lambert   v.   Davis    (Cal.) 40,  380 


TABLE   OF    CASES.  Ixxvii 

Pages 

Lancaster  v.  Maxwell  (Cal.) 749,  787,  788 

Lano  V.  Pacific  &  I.  N.  E.  Co.  (Idaho) 163,  174 

Lane  v.  Turner   (Cal.) 753 

Lang  V.  Crescent  C.  Co.  (Wash.) 021,  673,  726 

Larkin  v.  Mullen  (Cal.) 708 

Latson  v.  Nelson  (Cal.) 31,  33,  37,  483,  514 

Lavanway  v.  Cannon  (Wash.) 190,  200,  730,  774,  777,  803 

Lavenson  v.  Standard  S.  Co.  (Cal.) 149,  150,  592 

Lavin  v.  Bradley  (N.  M.) 634 

Lay  G.  M.  Co.  v.  Falls  etc.  Mfg.  Co.  (N.  C.) 658 

Lead  &  O.  Co.  v.  New  Albany  W.  W.  (Ind.) 81 

Lee  V.  Kimball  (Wash.) 138,  142,  370,  395,  615,  652,  673,  774 

Leftwitch  L.  Co.  v.  Florence  Mut.  B.  L.  &  S.  Assoc.  (Ala.) 505 

Leghorn  v.  Nydell  (Wash.) 475,  565 

Leick  V.  Beers  (Oreg.) 110,  323,  326,  329,  767 

Leppert  v.  Lazar  (Cal.) 384 

Levy  V.  Magnolia  Lodge  L  O.  O.  F.  (Cal.) 573 

Lewis  V.  Beeman    (Oreg.) 314,  420,  604,  610,  673,  680,  774 

Lewis  V.  Utah  Const.  Co.  (Idaho) 614,  708,  719 

Libbey  v.  Tidden  (Mass.) 102 

Lichty  V.  Houston  L.  Co.  (Colo.) 265,  273,  277,  287 

Limerick  v.  Ketcham  (Old.) 160,  527 

Linck  V.  Johnson  (Cal.) 367,  492,  534,  679,  715,  770 

Linck  V.  Meikeljohn  (Cal.) 13,  14,  32,  395,  408,  485,  795 

Lindemann  v.  Belden  Consol.  M.  &  M.  Co.  (Colo.) .  .8,  9,  16,  22,  52, 

116,  123,  130,  635 

Lingard  v.  Beta  Theta  Pi  Assoc.  (Cal.) 657 

Lippert  v.  Lazar   (Cal.) 272,  283,  384 

Littell  V.  Saulsberry  (Wash.) 48,  53,  193,  361,  771,  774 

Littell  &  Smythe  Mfg.  Co.  v.  Miller  (Wash.) 264,  320,  416,  427, 

528,  605.  758,  786 

Little  V.  City  of  Portland  (Oreg.) 485 

Little  Valeria  G.  M.  &  M.  Co.  v.  Ingersoll  (Colo.) .  .  .160,  583,  630,  790 

Little  Valeria  M.  &  M.  Co.  v.  Cunningham  (Colo.) 422 

Lockhart  v.  Eollins  (Idaho) 110,  122,  124 

Lomax  v.  Besley   (Colo.) 6U0 

Long  V.    Pierce  County  (Wash.) 164,  175,  177,  182,  193,  476, 

691,  703,  807 
Long  Beach  C.  School  Dist.  v.  Dodge  (Cal.) ..  .179,  186,  264,  558, 

570,  647,  6.55 

Long  Beach  School  Dist.  v.  Lutge  (Cal.) 469,  486.  545,  570 

Lonkey  v.  Cook  (Nev.) 410,  495,  514 

Lonkey  v.  Keyes  S.  M.  Co.  (Nev.) 600,  601 

Lonkey  v.  Wells  (Nev.) 23,  298,  307,  313,  335,  343,  609,  634,  751 

Loonie"^  v.  Hogan  (N.  Y.) 508 

Los  Angeles  G.  M.  Co.  v.  Campbell  (Colo.) 49,  773 

Los  Angeles  P.  B.  Co.  v.  Higgins  (Cal.).. 230,  231,  626^  632,  756,  770 


Ixxviii  TABLE   OP    CASES. 

Pages 

Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co.  (Cal.) 97, 

206,  413,  625,  643,  770 

Los  Angeles  T.  Co.  v.  Wilshire  (Cal.) 268,  274 

Lothian  v.  Wood  (Cal.) 141,  151,  358,  415,  422,  434,  462 

Louisville  &  N.  P.  E.  Co.  v.'House  (Tenn.) 595 

Loup  V.  California  So.  E.  Co.  (Cal.) 182,  188,  189,  620 

Loveland  v.  Garner   (Cal.) 658 

Lowe  V.  Turner    (Idaho) 628,  672,  793 

Lowe  V.  Woods  (Cal.) 40 

Lowrey  v.  Svard   (Colo.) 493,  757,  760 

Lucas  V.  Eedward   (Hawn.) 17,  22,  293,  447,  451,  750 

Luckhart  v.  Ogden  (Cal.) 162,  175,  261 

M 
Macomber  V.  Bigelow  (Cal.) 20,  25,  26,  57,  70,  73,  77,  78,  117, 

128,  229,  252,  307,  396,  397,  413,  488,  489,  493,  499,  538,  620, 

626,  652,  711,  714,  719,  73;^,  741,  742,  751,  753,  755 

Macondray  v.  Simmons  (Cal.) 4,  5,  650 

Madary  v.  Smartt  (Cal.) 87,  121,  151,  360,  634,  830 

Madera  F.  &  T.  Co.  v.  Kendall  (Cal.).  .165,  204,  226,  254,  296,  303, 

326,  329,  330,  368,  369,  499,  634 
Maher  v.  Shull  (Colo.) ..  .23,  52,  166,  227,  321,  419,  422,  453,  459,  468 

Mahoney  v.  Braverman  (Cal.) 737 

Mahoney  v.  Butte  H.  Co.  (Mont.) 702 

Main  Inv.  Co.  v.  Olsen  (Wash.) 184,  476,  696,  791 

Mallory  v.  La  Crosse  Abattoir  Co.  (Wis.) 85 

Malone  v.  Big  Flat  G.  M.  Co.  (Cal.) 51,  62,  89,  91,  101,  102, 

123,  124,  132,  146,  153,  301,  307,  308,  327,  330,  359,  380,  392, 

399,  409,  580,  584,  602,  603,  648,  654,  711,  712,  750 

Malter  v.  Falcon  M.  Co.  (Nev.) 16,  23,  306,  307,  322,  323 

Mammoth  M.  Co.  v.  Salt  Lake  M.  Co.  (U.  S.) 530.  585 

Mangrum  v.  Truesdale  (Cal.) 47,  219,  479,  552,  562 

Mannix  V.  Tryon  (Cal.)... 48,  49,  71,  75,  76,  77,  85,  761,  770,  785.  788 

Marble  Co.  v.  Eailroad  Co.  (U.  S.) 145 

Marble  L.  Co.  v.  Lordsburg  Hotel  Co.  (Cal.) 118,  273,  274,  280, 

283,  285,  286,  287,  386,  387,  388,  682,  685,  703,  704,  727,  728, 

740,  743,  744 

March  v.  McKoy  (Cal.) 143,  606,  751 

Marchant  v.  Hayes  (Cal.) 66,  67,  71,  229,  252,  274,  278,  279, 

283,  284,  285,  289,  377,  384,  388,  415,  434,  467,  493,  499,  500, 

539,  583,  587,  588,  664,  758,  759 
Marean  v.  Stanley  (Colo.)  .  .294,  450,  577,  584,  585,  586,  785,  806,  850 

Maris  v.  Clevenger  (Wash.) 573 

Marks  v.  Pence  (Wash.) • 16,  35,  779 

Marquette  O.  H.  Co.  v.  Wilson  (Mich.) 566 

Mars  V.  McKay  (Cal.) 371,  37d,  728.  730 

Marsh  v.  Morgan  (Mont.)' , 49,  89,  118,  585,  694 

Marshall  v.  Cardinell  (Oreg.) 445,  819 


TABLE    OF    CASES.  Ixxix 

Pages 

Martin  v.  Simmons  (Colo.) 350,  353,  727 

Mason  v.  Gerraaine  (Mont.) 20,  450,  451,  463,  539,  577,  579, 

585,  609,  727,  729,  751,  752,  753,  760,  782,  793 

Masow  V.  Fife  (Wash.) 42.3,  424,  425,  430 

Matthicsen  v.  Arata   (Oreg.) 151,  423,  639,  703 

Maxon  v.  School  Dist.  (Wash.) 153,  154,  608 

Maynard  v.  Ivey  (Nev.) 306,  311,  322,  356,  580 

Mayrhofer  v.  Board  of  Education  (Cal.) 154 

McAllister  v.  Benson  M.  &  S.  Co.   (Ari/c.) 143 

McAllister  v.  Clopton    (Miss.) 35 

McAlpin  V.  Duncan  (Cal.) 22,  495,  507,  508,  514 

McCabe  v.  Grey  (Cal.) 448 

McCants  v.  Bush  (Cal.) 511,  514 

McClain  V.  Hutton  (Cal.) 67,  91,  120,  129,  132,  148,  251,  301, 

316,  323,  324,  328,  337,  338,  341,  342,  345,  353,  365,  368,  449, 
456,  457,  459,  528,  529,  531,  715,  716,  718,  719,  738,  747,  763,  784 

McClain  v.  Knight  (Cal.) 453 

McClair  v.  Huddart    (Colo.) 610 

McConnell  v.  Corona  City  W.  Co.  (Cal.).  .  .172,  194,  269,  476,  587, 

647,  802 

MeCormick  v.  Bailey    (Cal.) 658 

McCormick  v.  Los  Angeles  W.  Co.  (Cal.) 91,  122,  131 

McCornick  v.  Sadler  (Utah) 480,  681,  702 

McCrea  v.  Craig     (Cal.) 4,  7,  9,  42,  44,  451,  458,  634 

McCrea  v.  Johnson    (Cal.) 20,  507,  511,  539 

McCue  V.  Jackman  (Cal.) 289,  680 

McDonald  v.  Backus    (Cal.) 308,  329,  369,  603,  606 

McDonald  v.  Hayes     (Cal.) 244,  246,  284,  286,  288,  289,  290, 

481,  482,  495,  697,  785 

McDonald  v.  Lewis    (Wash.) 184,  697 

McDonald  v.  Mission  View  H.  Assoc.  (Cal.) 671 

McEwen  v.  Monana  P.  &  P.  Co.  (Mont.) .  .  .86,  344,  453,  609,  659,  664 

McFadden  v.  Ellsworth  M.  &  M.  Co.  (Nev.) 595 

McFadden  v.  O'Donnell     (Cal.) 182,  183,  194 

McGinley  v.  Hardy   (Cal.) 262,  269 

McGinty  v.  Morgan  (Cal.) 25,  27,  93,  298,  307,  337,  .524,  689,  732 

McGlauflin  v.  Wormser  (Mont.) ..  .17,  26,  187,  196,  293,  306,  615, 

621,  799 

McGlynn  v.  Moore  (Cal.) 155 

McGonigle  v.  Klein  (Colo.) 268,  270,  587,  618 

McGreary  v.   Osborne    (Cal.) 135,  143,  415,  450 

McGrew  v.  Barnes   (Hawn.) 475 

McGuire  v.   Quintana    (Cal.) 657,  661 

McHugh  V.  Slack  (Wash.) .  .  .  .  16,  24,  298,  303,  304,  332,  338,  349, 

351,  354,  357,  797 

Mclntyre  v.  Barnes  (Colo.) 174,  271,  410,  516,  661 

Mclntyre  v.  Trautner    (Cal.)  .  . .  .118,  165,  193,  273,  283,  312,  330, 

536,  712,  717,  723,  772,  773 


IXXX  TABLE    OP    CASES. 

Pages 

MeKinley,  Estate  of  (Cal.) 071 

McKinnon  v.  Higgins  (Oreg.) 558,  818 

McLaughlin  v.  Green     (Miss.) 398 

McLaughlin  v.  Perkins     (Cal.) 4,  15,  189,  383,  386,  684 

McManus,  Ex  parte  (Cal.) 35.  107 

McMenomy  v.  White  (Cal.).. 71,  229,  233,  2.54,  256,  493,  499,  553, 

583,  588,  606,  748.  759 

McNeil  V.  Borland  (Cal.) 4,  15,  17,  18,  49,  598,  760 

McPherson  v.  Hattieh    (Ariz.) 109,  614,  623,  639,  733 

McPherson  v.  San  Joaquin  County  (Cal.) 153,  174,  268,  269,  587 

McPherson  v.  Smith    (Wash.) 687,  799 

Megrath  v.  Gilmore  (Wash.) 675,  692,  693,  703 

Meigs  V.  Bruntsch  (Cal.) 194 

Mellor  V.  Valentine   (Colo.) 356,  417,  429,  450,  453,  682 

Mentzer  v.  Peters   (Wash.) 421,  434,  760 

Merced  Bank  v.  Eosenthal  (Cal.) 790 

Merced  L.  Co.  v.  Bruschi  (Cal.) 212,  493,  497,  771 

Merchant  v.  Humeston  (Wash.) 300,  312,  317,  359 

Merrigan  v.  English   (Mont.) 73,  313,  413,  425,  451,  529,  657 

Merriner  v.  Jeppson    (Colo.) 706,  795 

Meyer  v.  Quiggle   (Cal.) 26,  371 

Meyers  v.  Pacific  Cons.  Co.  (Oreg.) 183 

Meyers  v.  Wood   (Tex.) 564 

Michael  v.  Eeeves  (Colo.) 16,  17,  43,  87,     94 

Michalitschke  Bros.  &  Co.  v.  Wells,  Fargo  &  Co.  (Cal.) 657 

Middleton  v.  Arastraville  M.  Co.  (Cal.) 457,  477 

Midland  R.  Co.  v.  Wilcox  (Ind.) 139,  404 

Miles  V.  Coutts   (Mont.) 573,  574 

Miles  Co.  V.  Gordon   (Wash.) 430 

Miller  v.  Carlisle    (Cal.) 49,  599,  756,  761 

Miller  v.  Luco    (Cal.) 667 

Miller  v.  Stewart   (U.  S.) 556 

Miller  v.  Stoddard    (Minn.) 448 

Miller  v.  Thorpe  (Colo.) 34,  800 

Miller  v.  Waddingham    (Cal.) 148,  592 

Mills  V.  Fletcher  (Cal.)    667 

Mills  V.  La  Verne  L.  Co.  (Cal.) 20.  5.39 

Mills's  Estate,  In  re  (Oreg.) 658 

Miltimore  v.  Nofziger  Bros.  L.  Co.  (Cal.) 32,  51.  465 

Ming  Yue  v.  Coos  Bay  R.  &  E.  R.  &  N.  Co.  (Oreg.) .....  .585,  758,  760 

Minneapolis  T.  Co.  v.  Great  N.  R.  Co.  (Minn.) ' 193 

Minor  v.  Marshall  (N.  M.) 4,  22,  25,  27,  303,  312,  324,  362, 

363,  364,  369 

Missoula  M.  Co.  v.  O'Donnell  (Mont.)    IS,  26.  84,  .87.  94,  319, 

325,  384,  417,  422,  424,  458,  468,  573,  600,  604,  634,  679,  681 
Mochon  V.  Sullivan   (Mont.)... 4,  8,  9,  16,  18,  451,  585,  586,  732,  758 

Mohr  V.  Byrne  (Cal.) : 786 

Moisant  v.  McPhee  (Cal.) ' 152 


TABLE    OF    CASES.  Ixxxi 

Pages 

Moise  V.  Mansfield   (Wash.) 162 

Mondran  v.  Goux  (Cal.) 615 

Montague  (W.  W.)  Co.  v.  Furness.   See  W.  W.  Monague  Co.  v.  Fur- 

ness. 
Montana  L.  &  Mfg.  Co.  v.  Obelisk  M.  &  C.  Co.  (Mont.) .  .  .319,  364, 

403,  422,  423,  424,  450 

Montana  O.  P.  Co.  v.  Boston  &  M.  C.  &  S.  Min.  Co.  (Mont.) 585 

Montgomery  v.  Rief  (Utah) 571 

Montrose  v.  Conner  (Cal.) 347,  349,  354,  450,  458,  609,  610,  688 

Moore  v.  Jackson     (Cal.) 417,  418,  423,  532 

Moore  v.  Kerr    (Cal.) 190,  268,  283 

Moore  v.  Lent    (Cal.) 498 

Morehouse  v.  Collins  (Oreg.) 347,  689 

Morgan,  In  re  (Colo.) 35 

Morgan  v.  Birnie  (Eng.) 188 

Morgan  v.  Board  of  Education   (Cal.) 492,  497 

Morrell  H.  Co.  v.  Princess  G.  M.  Co.  (Colo.) 160,  422,  468 

Morris  v.  Wibaux  (111.) 175 

Morris  v.  Wilson    (Cal.) 4,  15,  17,  33,  67,  71,  195,  229,  251, 

252,  588,  757,  769 

Morrison  v.  Carey-Lombard  Co.  (Utah) 21,  263,  293,  294,  295, 

297,  345,  376,  416,  451,  458,  464,  503,  515 

Morrison  v.  Clark    (Utah) 161,  417,  527,  530 

Morrison  v.  Inter-Mountain   Salt   Co.    (Utah).. 338,  451,  495,  624, 

626,  701 
Morrison  v.  Willard    (Utah)..  18,  93,  298,  303,  306,  309,  311,  325, 

495,  496,  626,  634,  637,  689 

Morrison  v.  Wilson  (Cal.)    169 

Morrison,  Merrill  &  Co.  v.  Willard  (Utah).  .  .16,  67,  1(52.  298,  338,  411 

]\torrow  V.  Merritt  (Utah) 423,  430,  530 

Morse  v.  De   Ardo   (Cal.) 33,  52,  145,  146 

Morso  V.  Hinckley    (Cal.) 159 

Mouat  L.  &  I.  Co.  V.  Freeman  (Colo.) 308,  311,  614,  687 

Mouat  L.  Co.  V.  Gilpin  (Colo.) 21,  42,  488 

Mount  Tacoma  M.  Co.  v.  Cultum  (Wash.) 347 

Mountain  E.  Co.  v.  Miles  (N.  M.).  .  .8,  25,  152,  293,  378,  396,  403, 

434,  575.  576 

Mowry  v.  Starbuck  (Cal.) 690 

Moxley   v.   Shepard    (Cal.) 463,  465 

Mras  V.  Duff   (Wash.) 336,  340 

Mulcahy  V.  Buckley  (Cal.).. 636,  647,  658,  659.  768,  773,  774,  775,  777 

Muldoon    V.   Lynch    (Cal.) 186 

Mullally  V.  Townsend   (Cal.) 70S 

Mundy  v.  Stevens  (Fed.) ,167 

Muuroc  V.  Sedro  L.  &  S.  Co.  (Wash.) 725 

Murray  v.  Swanson  (Mont.) 22,  450,  451,  774,  775 

Mutual  L.  Ins.  Co.  v.  Walling  (N.  J.) 549 

Mech.  Liens  —  P 


Ixxxii  TABLE    OF    CASES, 

N  Pages 

Nason  v.  John    (Cal.).-.\ 204,  205,  206,  410,  623,  626,  790 

Nason  v.  Northwestern  M.  &  P.  Co.  (Wash.) .  .  .130,  171,  294,  449, 

4.52,  .597.  610 

National  Bank  of  C.  v.  Schirni  (Cal.) 564,  675 

National  F.  &  P.  Works  v.  Oconto  Water  Co.  (Fed.) 405 

Naumberg  v.  Young  (N.  J.) 693 

Neher  v.  Crawford  (N.  M.) 750,  768,  778 

Neihaus  V.  Morgan  (Cal.)  •  •  • -83,  241,  311,  312,  315,  340,  587,  632, 

752.  760 

Neilsou  V.  Iowa  E.  E.  Co.  (Iowa) 702 

Nelson  v.  Clerf  (Wash.) 142,  416,  430 

Neufelder  v.  Third  Street  &  S.  E.  (Wash.) 149 

Newcomb  v.  White  (N.  M.) 725,  796 

Newell  V.  Brill  (Cal.)... 25,  119,  305,  306,  329,  334,  33S,  395,  646, 

658,  716,  718,  719,  766,  793 
New  England  Engineering  Co.  v.  Oakwood  Street  E.  Co.  (Ohio) .  .  144 
Newport  W.  &  L.  Co.  v.  Drew  (Cal.).  .155,  185,  189,  196,  263,  469, 

509.  516,  522,  540 

Nichols  V.  Culver  (Conn.) 505 

Nichols  V.  Eandall    (Cal.) 690 

Nicolai  Bros.  v.  Van  Fridagh  (Oreg.).16,  23,  24,  25,  26,  306,  314,  579 

Nofziger  Bros.  L.  Co.  v.  Shafer  (Cal.) 333,  334,  340,  714 

Nolan  V.  Lovelock  (Mont.) 313,  535,  577,  619,  677,  679,  758 

North  Pacific  L.  Co.  v.  Spore  (Oreg.) 264,  671 

Northwest  B.  Co.  v.  Tacoma  S.  B.  Co.  (Wash.).  .331,  417,  425,  605,  752 

Nottingham  v.  McKendrick  (Oreg.) 87,  311,  327,  331,  445,  540 

Novelty  M.  Co.  v.  Heinzerling  (Wash.) 534,  561.  692,  703,  731 

Noyes  v.  Barnard  (Fed.) 485 

Nystrom  v.  London  &  N.  W.  Am.  Mortg.  Co.  (Minn.) 351 

O 

O'Connell  v.  Main  etc.  Hotel  Co.  (Cal.) 587 

O'Connor  v.  Adams  (Ariz.) 168,  176,  196,  617,  726 

O'Connor  v.  Dingley  (Cal.) 179,  575,  614,  617,  690 

O'Connor  v.  Frasher  (Cal.) 737 

Odd  Fellows'  Hall  v.  Masser  (Pa.) 86,  247 

O'Donnell  v.  Kramer  (Cal.) 410,  483,  624,  660 

O'Driscoll  V.  Doyle  (Colo.) 570 

Olson  V.  Snake  EiverV.E.  Co.  (Wash.).  69,  177,  188,  269,369,  719,  801 

O'Neal  V.  Kelly  (Ark.) 556 

Ontario-Colorado  G.  M.  Co.  v.  MacKenzie  (Colo.) 103,  661 

Ord  v.  Steamer  Uncle  Sam  (Cal.) 658 

Oregonian  etc.  Co.  v.  Oregon  etc.  Co.  (Fed.) : 659 

Orlandi  v.  Gray  (Cal.) 112,  385,  742 

Orman  v.  Crystal  E.  E.  Co.  (Colo.) 41,  43,  451,  593,  594.  786 

Orman  v.  Eyan    (Colo.) ." .196,  584,  778 

O'Eourke  v.  Butte  Lodge  (Mont.) 583,  584,  585,  586,  758 


'  TABLE   OF    CASES.  Ixxxiii 

Pagea 

Ortega  v.  Cordrro  (Cal.) ^JTl 

Osborn  v.  Logus  (Oreg.) 297,  304,  306,  309,  310,  318,  331,  332, 

529,  530,  605,  608,  610,  654,  712,  722,  725,  757,  786,  787 

Oviiigton  V.  ^tna  I.  Co.  (Wash.)   551,  557,  561 

Owen  V.  Casey   (Wash.) 423 

P 

Pacific-  B.  Co.  V.  United  States  F.  &  G.  Co.   (Wash.) 554,  558, 

568,  604,  614 

Pacific  H.  Co.  V.  Lincoln   (Hawn.) 75,  258,  265,  273,  288,  386, 

410,  578,  599,  750 

Pacific  Mfg.  Co.  V.  Brown   (Wash.) 294,  377,  573,  593,  752 

Pacific  Mfg.  Co.  V.  School  Dist.  (Wash.) 154 

Pacific  Mut.  L.  Ins.  Co.  v.  Fisher  (Cal.) 53,  55,  57,  59,  62,  110, 

159,  216,  301,  311,  321,  366,  376,  383,  411,  449,  453,  494,  540, 
546,  578,  579,  647,  700,  705,  718,  733,  753,  754,  761,  772,  774, 

785,  787,  789,  790,  803 

Pacific   R.  M.  Co.  v.  Bear  Valley  Irr.  Co.  (Cal.) 139,  146,  301, 

357,  358,  406,  408,  605,  799 

Pacific  R.  M.  Co.  v.  English  (Cal.) 68,  176,  268,  538,  542,  709, 

796,  799 
Pacific  R.  M.  Co.  v.  Hamilton    (Wash.).. 61,  62,  72,  80,  530,  629,  G30 

Pacific  R.  M.  Co.  v.  James  Street  Const.  Co.  (Fed.) 61,  62,  80, 

88,  144,  406,  416,  530 
Pacific  States  S.  L.  &  B.  Co.  v.  Dubois  (Idaho).  .  .6,  12,  13,  15,  54, 

58,  114,  326,  447,  451,  457,  465,  751 

Paddock   v.  Stout    (111.) 398 

Paige  V.  Carroll  (Cal.) 554,  594 

Palmer  v.  Lavigne  (Cal.) 2,  45,  93,  119,  120,  326,  427,  654,  712 

Palmer  v.  Uneas  M.  Co.  (Cal.) 123,  576,  622,  724,  727 

Palmer  v.  White    (Cal.) 252,  588 

Parke  and  Lacy  Co.  v.  Inter  Nos  O.  &  D.  Co.  (Cal.) 87,  97,  138, 

142,  143,  362,  364,  369,  395,  416,  566,  631,  636,  637,  640,  648, 

654,  750,  801 

Parker  v.  Savage  Placer  M.  Co.  (Cal.) 127,  602,  625,  720 

Parmalee  v.  Hambelton  (111.) 407 

Parsons  v.  Pearson  (Wash.) 320,  426,  605 

Patent  Brick  Co.  v.  Moore  (Cal.) 87,  186,  540,  561,  619,  632, 

633,  695,  699,  737 

Patrick  Land  Co.  v.  Leavenworth  (Neb.) 448 

Patterson  v.   Gallagher   (Oreg.) 8,  119,  152 

Peacock   v.  United  States   (Fed.) 659 

Pearce  v.  Albright  (N.  M.) 303,  361,  431,  493,  673,  750,  824 

Peckham  v.  Fox   (Cal.) 33,  48,  770,  771 

Pelton  V.  Minah  Consol.  M.  Co.  (iVIont.) 422,  423,  425 

Pennie   v.   Hildreth   (Cal.) 641 

Pennsylvania  Steel  Co.  v.  ,J.  K.  I'otts  S.  &  L.  Co.  (Fed.).  .  .139,   140,  144 
Penrose   v.  Calkins   (Cal.) 347,  348 


Ixxxiv  TABLE   OF    CASES. 

Pages 

People  V.  Center    (Cal.) 641 

People  V.  Dodge   (Colo.) 1.33.  217 

People  V.  Hartley  (Cal.) .554,  723 

People  V.  Love    (Cal.) 723 

People  V.  Soto   (Cal.) 498 

People's  L.  Co.  v.  Gillard  (Cal.).  .  .47,  1.53,  220,  554,  557,  570,  571, 

726,  812,  818 

Pepley  v.  Huggins  (Cal.) 447 

Perkins  v.  Boyd  (Colo.) 20,  49,  359,  368,  388,  389,  394,  .541. 

630,  770,  796 

Perkins  v.  West  Coast  L.  Co.   (Cal.) 686 

Perrault  v.  Shaw  (N.  H.) 91 

Perrine  v.  Marsden  (Cal.) 592 

Perry  v.  Brainard  (Cal.) 266,  374,  377 

Perry  v.  Parrott    (Cal.) 518,  .541,  545 

Perry  v.   Quackenbush    (Cal.) 66,  276,  278,  283,  286,  2S9,  587, 

588,  704,  738,  740.  797 

Peterman  v.  Milwaukee  B.  Co.  (Wash.) 579,  583,  680,  719,  758 

Peters  v.  Mackay  (Wash.) 219,  565,  567 

Peterson  v.  Dillon  (Wash.) 13,  16,  18,  161,  427,  530,  592,  593, 

605,  728,  756 

Peterson  v.  Shain    (Cal.) 68,  74,  727,  743,  797 

Phelps  V.  Maxwell's  Creek  G.  M.  Co.  (Cal.).  .4,  306,  322,  434,  435, 

439,  494,  534,   760,  761,  763 

Philadelphia  M.  &  T.  Co.  v.  Miller  (Wash.) 149,  703 

Phillips  V.  Salmon  E.  M.  &  D.  Co.  (Idaho).  .23,  317,  354,  .360,  399, 

462,  688 

Pierce  v.  Birkholm    (Cal.) 59,  164,  233,  238,  239,  288,  390 

Pierce  v.  Willis  (Cal.) 705.  745 

Pilz  V.  Killingsworth  (Oreg.) .  .4,  8,  16,  22,  24,  130,  148,  296,  303, 

306,  402,  529,  631,  637,  639 

Pioneer  S.  &  L.  Co.  v.  Freeburg  (Minn.) 566 

Pitschke  v.  Pope  (Colo.) 4,  16,  23,  .52,  119,  131 

Piatt  V.  Griffith  (N.  J.) 549 

Poett  V.  Stearns  (Cal.) 641 

Pogue  V.  Kaweah  P.  &  W.  Co.  (Cal.) 186 

Pohlman   v.  Wilcox    (Cal.) 68,  78,  288,  543,  544,  703 

Porter  v.  Arrowhead  E.  Co.  (Cal.) 270,  587 

Portland  L.  Co.  v.  School  Dist.  (Oreg.) 154 

Post  V.  Fleming  (N.  M.) 152,  317,  394,  441,  462,-  533,  574,  766 

Post  V.  Miles  (N.  M.)...22,  25,  152,  157,  304,  306,  310,  338,  403, 

416,  423,  431,  434,  529,  535,  585,  604,  654,  751,  764 

Potvin  V.  Deuuy  Hotel  Co.  (Wash.) 21,  84,  447,  458,  477,  .548, 

57.5,  592,  "680,  697,  704 

Potvin   V.  Wickersham  (Wash.) 583,  584,  588,  592 

Powell  V.  Nolan  (Wash.) 25,  67,  161,  197,  300,  307,  316,  320, 

358,  368,  427,  456,  462,  539,  580,  585,  598,  600,  605,  609,  643, 

668,  680,  687,  712,  717,  725,  730,  799 


TABLE    OF    CASES.  IxXXV 

Pages 

Prentice,  The  James  H.  (Fed.) 738 

Prcsbj-terian  Church  v.  Santy  (Kan.) 717 

Prcsc'ott  Nat.  Bank  v.  Head   (Ariz.) .  .5.50,  5.55,  560,  561,  562,  564, 

792,  818 

Preston  v.  Sonora  Lodge  (Cal.) 447,  455,  457 

Price  V.  Scott  (Wash.) 688 

Prince  v.  Neal-Millard  Co.  (Cal.) 34 

Provident  M.  B.  L.  Assoc,  v.  Shaffer  (Cal.) 17,  371,  460,  593 

Purmort  v.  Tucker  L.  Co.  (Colo.) 43 

Purser  v.  Cady  (Cal.) 451,  781 

Purtell  V.  Chicago  F.  &  B.  Co.  (Wis.) 404 

Q 

Quackenbush  v.  Artesian  L.  Co.   (Orcg.) 529 

Quale  V.  Moon  (Cal.) 34,  38,  263,  409,  484,  650,  662,  667 

Quinby  v.  Slipper  (Wash.) 596,  643,  779 

R 

Railway  Co.  v.  Birnie  (Ark.) 175 

Rainsford  v.  Massengale  (Wyo.) 655 

Ramish  v.  Hartwell  (Cal.) 34,     35 

Ramsey  v.  Johnson  (Wyo.) 541 

Randall  v.  Hunter  (Cal.) 786 

Rankin    v.    Malarkey    (Oreg.) 294,  303,  306,  310,  326,  331 

Raphael  (H.)  Co.  v.  Grote.    See  H.  Raphael  Co.  v.  Grote. 

Rapp  V.  Spring  Valley  G.  Co.  (Cal.) 725,  768,  772,  773,  775,  776 

Rara  Avis  G.  &  S.  Co.  v.  Bouscher  (Colo.) 91,  123,  130,  131 

Rasmusson  v.  Liming  (Wash.) 604,  757 

Rauer  v.  Fay  (Cal.) 20,  163,  264,  306,  539,  .543,  619,  660,  691,  721 

Rauer  v.  Silva   (Cal.) 104 

Rauer  v.  Welsh  (Cal.) 20,  163,  539,  543,  691,  721 

Ray  County  Sav.  Bank  v.  Cramer  (Mo.) 89 

Read  v.  Buffum  (Cal.) 658 

Reading  v.  Reading  (Cal.) 649 

Rebman  v.  San  Gabriel  V.  L.  &  W.  Co.  (Cal.) .  .  .202,  226,  251,  252, 

253,  588,  663,  668,  694,  706,  707,  740,  801 
Reed  v.  Norton  (Cal.) 165,  176,  210,  214,  240,  242,  243,  248, 

285,  309,  318,  332,  341,  363,  377,  388,  471,  473,  474,  513,  530, 

615,  627,   628,  631,  633,  6,34,  708,  712,  715,  716,  717,  720,  797 

Reedy  v.  Smith  (Cal.) 162,  174 

Reese  v.  Bald  Mountain  Consol.  G.  M.  Co.  (Cal.) 15,  17,  27,  52, 

125,  4.36,  437,  438,  440,  527,  533,  630,  660,  679,  680,  737.  742, 

743,  745,  747,  795 

Reeve  v.  Kennedy  (Cal.) 601 

Rcichenbaeh  v.  Sage  (Wash.) 175,  187,  269 

Remington  v.  Fidelity  &  D.  Co.  (Wash.) 557 

Remy  v.  Olds  (Cal.) 648 

Renton  v.  Conley  (Cal.) 511,  514,  527,  624,  631 


IxXXVi  TABLE    OP    CASES. 

Pages 

Kenton  v.  Monnier  (Cal.) 528,  534,  536,  538,  542,  675 

Reynolds  v.  Hosmer   (Cal.) 142 

Reynolds  v.  Jourdan   (Cal.) 616,  690 

Riale  v.  Roush  (Mont.)   584,  585,  758 

Rialto  M.  &  M.  Co.  v.  Lowell  (Colo.) 538,  649 

Rice  V.  Carmichael    (Colo.) 7,  23,  35,  37,  306,  361,  505 

Rice  V.  Hodge  (Kan.) 702 

Richards  v.  Lewisohn  (Mont.)... 9,  16,  22,  26,  298,  318,  319,  322, 

323,  722,  757 

Richards  v.  Shear  (Cal.) 45,  425 

Rico  R.  &  M.  Co.  V.  Musgrave  (Colo.) 23,  160,  315,  359,  417, 

430,  467,  682 

Riddell  v.  Peck-Williamson  H.  &  V.  Co.  (Mont.) 170,  274,  618,  675 

Ripley  v.  Cochiti  G.  M.  Co.   (N.  M.) 84,  123 

Ritter  v.  Stevenson   (Cal.) 18,  539,  540,  541 

Roberts  v.  Treadwell    (Cal.) 595 

Roberts  v.  Wilcoxson  (Ark.) 584 

Robertson  V.  Moore  (Idaho). 303,  395,  585,  615,  725,  732,  737,  771,  796 

Robinson  v.  Brooks  (Wash.) 368 

Robinson  v.  Merrill  (Cal.) 658 

Roeber,   In   re    (Fed.) 546 

Roebling  Sons  Co.  v.  Bear  Valley  Irr.  Co.  (Cal.).  .83,  87,  140,  633, 

737,  797 

Roebling's  Sons  Co.  v.  Humboldt  E.  L.  &  P.  Co.  (Cal.) 55,  64, 

65,  66,  74,  80,  82,  83,  143 

Root  V.  Bryant  (Cal.) 458,  737,  791 

Rose  V.  Munie  (Cal.) 447 

Rosenkranz  v.  Wagner  (Cal.) 510,  511,  514,  624,  741 

Rosina  v.  Trowbridge  (Nev.) 18,  420,  434,  445,  604,  605,  606,  609 

Ross  V.  Campbell  (Colo.) 149 

Rounds  V.  Whatcom  Co.  (Wash.) 218 

Rourk  V.  Miller  (Wash.) 658 

Rourke   v.   Bergevin    (Idaho) 457 

Rousseau  v.  Hall   (Cal.) 606 

Routt  V.  Dils  (Colo.)   560,  570 

Rowland  v.  Harmon  (Oreg.) 331,  579 

Rowley  v.  Varnum  (Okl.) 426 

Royee  v.  Latshaw   (Colo.) 149 

Roylance  v.  San  Luis  Hotel  Co.  (Cal.) 2m,  374,  377,  595,  787 

Runey  v.  Rea  (Oreg.) • 351 

Rupe  V.  New  Mexico  L.  Assoc.  (N.  M.) 585,  758,  764 

Russ  L.  &  M.  Co.  V.  Garrettson  (Cal.) 26,  27,  53,  205,  221,  306, 

312,  325,  328,  341,  346,  360,  480,  516,  525,  526,  607,  623,  624, 

627,  638,  655,  708,  712,  746,  757",  772,  777,  800 

Russ  L.  &  M.  Co.  V.  Muscupiabe  L.  &  W.  Co.  (Cal.) 268 

Russ  L.  &  M.  Co.  V.  Roggejikamp  (Cal.) 511,  514.  522 

Russell  V.  Hayner  (Alas.) 9,  16,  17,  24,-25,  26,  160,  306,  323, 

533,  585 


TABLE   OF    CASES.  IxXXVli 

Pages 

Eyan  v.  Jaques    (Cal.) 708 

Eyan  v.  Staples     (Fed.) 750,  778,  782,  784 

Eyudak  v.  Seawcll  (Old.) 24,  54,  72,  74,  84,  87,  264,  371,  633, 

651,  687 
S 

Sabin  v.  Connor   (Fed.) 41,  44,  293,  451,  596 

Sachse  v.  Auburn   (Cal.) 645,  793 

Sacramento  v.  Dunlap  (Cal.) 554,  723 

Sagmeister  v.  Foss   (Wash.) 320,  416,  605 

Salt  Lake  F.  &  M.  Co.  v.  Mammoth  M.  Co.  (Utah) 530 

Salt  Lake  H.  Co.  v.  Chainman  M.  &  E.  Co.  (Fed.) 23,  25,  52, 

64,  81,  123,  144,  192,  199,  274,  365,  368,  383,  399,  406,  574 

Salt  Lake  L.  Co.  v.  Ibex  M.  &  S.  Co.   (Utah.) 9,  19,  376,  403, 

547,  575,  584 

Sample  v.  Fresno  F.  &  I.  Co.  (Cal.) 269 

Sandberg  v.  Victor  G.  &  S.  M.  Co.  (Utah) 292,  572.  599,  672, 

690,  714,  719,  754,   797,  799,  800 

San  Diego  v.  San  Diego  &  L.  A.  R.  Co.  (Cal.) 159 

San  Diego  L.  Co.  v.  Wooldredge  (Cal.) 25,  27,  53,  176,  208, 

209,  213,  214,  224,  225,  250,  340,  MC>,  364 

Sandstrom  v.  Smith   (Idaho) 585,  738 

Sanford  v.  Kunkel    (Utah).. 14,  149,  151,  371,  395,  398,  417,  448, 

456,  762,  778,  779 

San  Francisco  v.  Buckman     (Cal.) 109,  130 

San  Francisco  B.  Co.  v.  Dumbarton  L.  &  I.  Co.  (Cal.) 270,  271,  695 

San  Francisco  Gas  Co.  v.  San  Francisco  (Cal.) 658 

San  Francisco  L.  Co.  v.  Bibb    (Cal.) 47,  218,  219,  552,  792 

San  Francisco  L.  Co.  v.  O'Neil   (Cal.) 229,  231,  233,  234,  236, 

254,  479,  798 

San  Francisco  P.  Co.  v.  Fairfield  (Cal.) 15,  16,  17,  26,  52,  158, 

265,  334,  606,  608,,  615,  650,  676,  700,  759 

San  Joaquin  L.  Co.  v.  Welton  (Cal.) 384,  653,  776 

San  Juan  etc.  Co.  v.  Finch  (Colo.) 585,  604,  778 

San  Juan  H.  Co.  v.  Carrothers  (Cal.) 465,  604,  609,  614,  640 

San  Miguel  Consol.  G.  M.  Co.  v.  Stubbs  (Colo.) 676,  701,  731 

San  Pedro  L.  Co.  v.   West   (Cal.) 98,  711,  714,  718 

Santa  Barbara  v.  Huse  (Gal.) 130,  628 

Santa  Clara  V.  M.  &  L.  Co.  v.  Williams  (Cal.).  .273,  294,  376,  384, 

492,  493,  499,  760 
Santa  Cruz  Rock  Pav.  Co.  v.  Lyons  (Cal.) .  .  .6,  26,  39,  40,  46,  117, 

128,  130,  161,  320,  322,  323,  324,  367,  423,  430,  442,  527,  699 
Santa  Monica  L.  &  M.  Co.  v.  Hege  (Cal.).  .  .81,  93,  148,  165,  204, 
273,  298,  303,  309,  313,  316,  343,  344,  365,  377,  434,  435,  619, 

634,  703,  708,  711,  714,  716,  718,  719,  722 

Sautter  v.  McDonald   (Wash.) 305,  326,  339,  363,  704 

Savage  v.  Dinkier     (Okl.) 652,  786 

Savage  v.  Glenn    (Orcg.) 181,  475,  477,  481,  697 

Savings  &  L.  Soc.  v.  Burnett  (Cal.) 549 


IxXXviii  TABLE    OP    CASES. 

Pages 

Sayre-Newton  L.  Co.  v.  Park   (Colo.) 21,  347,  348,  493,  505,  608 

Sayre- Newton  L.  Co.  v.  Union  Bank  (Colo.). 4,  16,  42,  51,  52,  73, 

74,  87,  767 

Scamrcon  v.  Denio 182,  476,  665,  767,  773 

Scanlan  v.  San  Francisco  &  S.  J.  V.  R.  Co.  (Cal.) 186,  190,  672, 

673,  675,  683,  807 
Sehallert-Ganahl  L.  Co.  v.  Neal     (Cal.) 28,  87,  198,  250,  307, 

478,  480,  553,  561,  578,  699,  700,  734,  772,  773,  776,  777 

Sehallert-Ganahl  L.  Co.  v.  Sheldon    (Cal.) 265,  274,  276,  279, 

377,  682,  703 
Scheerer  Co.  (C.)   (Inc.)  v.  Doming.     See  C.  Scheerer  Co.  (Inc.)  v. 
Darning. 

Sehettler  v.  Vendome  Turkish  B.  Co.  (Wash.) 152,  759 

Schindler  v.  Green  (Cal.) ..  .159,  174,  268,  272,  273,  274,  275,  536,  802 

Schmid   v.   Busch    (Cal.) 206,  217,  473,  510,  516.  658,  672,  735 

Schmidt  v.  City  of  North  Yakima  (Wash.) 188,  191,  275,  587 

School  Dist.  V.  Sage  (Wash.) 183 

Schradsky  v.  Dunklee   (Colo.) 72,  293,  294,  451,  461,  488,  489, 

505,  550 

Schroeder  v.  Pissis  (Cal.) 582,  671,  672,  733,  796,  835 

Schwartz  v.  Knight    (Cal.)... 60,  81,  279,  284,  377,  383,  453,  686,  739 

Schwartz  v.  Saunders  (111.)  398 

Schweizer   v.   Mansfield    (Colo.) 160,  422,  615,  758,  767,  786 

Scottish  U.  &  N.  Ins.  Co.  v.  Clancy  (Tex.) 188 

Sears  v.  Williams   (Wash.) 218 

Seattle  &  W.  W.  R.  Co.  v.  Ah  Kowe  (Wash.  Ter.) 44,  377,  774 

Seattle  L.  Co.  v.  Sweeney  (Wash.).. 25,  84,  88,  297,  300,  310,  317, 

321,  324,   338,  378,  462,  530,  640,  673,  679,  702,  792,  824 

Seely  v.  Neill  (Colo.) 394,  409,  434,  438,  456,  645 

Seibel  v.  Bath  (Wyo.) 158,  421 

Seldon  v.  Meeks  (Cal.) 92,  103,  119,  121,  313,  342,  505 

Sellwood  L.  &  M.  Co.  v.  Monnell  (Oreg.) 535,  631,  679 

Service  v.  McMahon   (Wash.) 593,  795 

Shapleigh  v.  Hull  (Colo.) 416,  419,  421,  533 

Sharon  v.  Minnick  (Nev.) 448 

Sharp  V.  Lumley  (Cal.) 611 

Shaughnessy  v.  American  Surety  Co.  (Cal.) 47,  218,  791 

Shaver  v.  Murdock  (Cal.) 71,  179,  190,  245,  261,  495,  676,  690 

Shaw  V.  Fjellman    (Minn.) 193 

Shaw  V.  Wandesforde  (Cal.) .' 471,  737 

Sheehan  v.  Winchill  (Wash.) 417 

Shortall  v.  Puget  Sound  Bridge  &  D.  Co.  (Wash.) 36 

Shuffloton  V.  Hill   (Cal.) 18,  41,  450,  514 

Sichlcr  V.  Look  (Cal.) 641,  642 

Sickman  v.  Wollett  (Colo.).. 49,  305,  326,  332,  334,  650,  770,  800,  830 
Sidlinger  v.  Kerkow  (Cal.).-. 118,  143,  151,  183,  203,  204,  205, 

206,  208,  225,  226,  243,  259,  574,  645,  765,  766,  792,  793 


TABLE    OF    CASE3.  Ixxxix 

Pages 

Sierra  Nevada  Co.  v.  Whitmore  (Utah) 75,  88,  197,  409,  411, 

412,  452,  470,  480 
Silvester  v.  Coe  Quartz  M.  Co.  (Cal.) ...  .87,  96,  139,  146,  293,  301, 

358,  408,  439,  443,  445,  687,  737,  800 

Silvey  v.  Neary  (Cal.) 671 

Simons  v.  Webster  (Cal.) 53,  539,  703,  795 

Simoiison  v.  Grant   (Minn.) 559,  566 

Simonton  v.  Kelley   (Mont.) 585,  732 

Simpson  v.  Gamache  (Cal.) 97,  486,  488,  591 

Sims  V.  Petaluma  G.  L.  Co.  (Cal.) 159,  647,  696,  740,  796 

Skagit  Co.  V.  Trowbridge  (Wash.) 183 

Skelly  V.  School  Dist.  (Cal.) 521 

Skym  V.  Weske  Consol.  Co.  (Cal.) 162,  163,  216,  229,  493,  575, 

647,  691,  774,  795 
Skyrme  v.  Occidental  M.  &  M.  Co.  (Nev.).  .18,  20,  23,  25,  41,  299, 

301,  306,  326,  392,  539,  575,  615,  637 

Slight  V.  Patton  (Cal.) 118,  304,  310,  311,  330,  332,  340,  366, 

636,  639,  640,  641,  653,  711 

Slocum  V.  Bear  Valley  Irr.  Co.  (Cal.) 34 

Sly  V.  Palo  Alto  G.  M.  Co.  (Wash.) 632,  652,  655 

Small  V.  Foley  (Colo.)... 4,  23,  41,  43,  87,  138,  139,  141,  202,  300, 

308,  315,  317,  383,  402,  403,  451,  504,  540,  593,  633,  753 

Smallhouse  v.  Kentucky  &  M.  G.  &  S.  M.  Co.  (Mont.) 119,  124,  300 

Smith  v.  Bowman   (Utah) 563,  570,  571 

Smith  v.  Bradbury  (Cal.) 203,  250 

Smith  v.  Brady  (N.  Y.) 268 

Smith  V.  Briggs   (N.  Y.) 188 

Smith  V.  Newbaur    (Ind.) 398 

Smith  V.  Owens  (Cal.) 576 

Smith  V.  Sherman  M.  Co.  (Mont.) 22,  306,  313,  399 

Smith  V,  Solomon  (Cal.) 772,  777 

Smith  V.  Wilcox    (Oreg.) 72,  75,  77,  ]66,  198,  299,  300,  410, 

462,  529,  530 

Smith  V.  Wilkins    (Oreg.) 447,  456,  459,  637,  778,  784,  802 

Smith  V.  Wilson    (Oreg.) 76 

Snell  V.  Bradbury  (Cal.) 28,  37,  47,  203,  218,  224,  225,  241,  498 

Snell  V.  Payne  (Cal.)... 90,  317,  334,  367,  463,  580,  724,  733,  748,  800 

Snodgrass  v.  Holland  (Colo.) 604,  605,  731 

Sonoma  County  v.  Hall  (Cal.) 554,  594 

Soule  v.  Dawes  (Cal.) 423,  442,  447,  448,  450,  451,  458,  460 

Southern  California  L.  Co.  v.  Jones  (Cal.).  .203,  204,  205,  206,  208, 

209,  212,  221,  260,  288,  290,  478,  482,  516 
Southern  California  L.  Co.  v.  Ocean  Beach  H.  Co.   (Cal.) .  .  .  .780,  781 

Southern  California  L.  Co.  v.  Peters   (Cal.) 25,  456,  462,  463 

Southern  California  L.  Co.  v.  Schmitt  (Cal.)  ..254,  294,  376,  493, 

499,  515,  606;  761 
Southern  Pac.  K.  Co.  v.  Allen  (Cal.) Ill 


xe  TABLE  OP  CASES. 

Pages 
Suuth  Fork  C.  Co.  v.  Gordon  (U.  S.) 4,  5,  41,  89,  131,  357,  405, 

406,  580,  603 

bpalding  v.  Burke  (Wash.) 110,  112,  197,  757,  792 

Spangler  v.  Green  (Colo.) 41,  43,  597 

Spargo  V.  Nelson  (Utah) 451,  454 

Sparks  v.  Butte  County  G.  M.  Co.  (Cal.) 55,  59,  60,  62,  74,  80, 

81,  101,  383 
Spaulding  v,  Coeur  d'Alene  E.  &  N.  Co.  (Idaho) 183,  192,  270, 

479,  796,  799 

Spaulding  v.  Mammoth  Springs  M.  Co.  (Cal.) 35 

Spears  V.Lawrence  (Wash.). 314,  334,  .342,  412,  430,  528,  562,  574,  758 

Spinney  v.  Griffith   (Cal.) 4,  15,  16,  33,  67,  588 

Spokane  &  I.  L.  Co.  v.  Loy  (Wash.) 555,  569,  571 

Spokane  Mfg.  &  L.  Co.  v.  McChesney  (Wash.).. 38,  411,  434,  530,  662 
Sprague  Inv.  Co.  v.  Mouat  L.  &  I.  Co.  (Colo.) .  .  .17,  20,  22,  43,  35, 

292,  304,  311,  321,  324,  419,  463,  541,  628,  733 

Springer  L.  Assoc,  v.  Ford  (U.  S.) 24,  25,  310,  314,  397,  579 

Staples  V.  Eyan  (Fed.) 778,  782,  784 

Star  M.  &  L.  Co.  v.  Porter  (Cal.) 263,  334,  341,  714,  711,  715, 

717,  718,  720 

State  V.  Henry  (Wash.) 36 

State  V.  Holden  (Utah) 35 

State  V.  Knowles  (Md.) 108 

State  V.  Liebes    (Wash.) 218 

State  V.  Livingston  C.  B.  &  M.  Co.  (Mont.) 35 

State  ex  rel.  Milsted  v.  Butte  City  W.  Co.  (Mont.) 658 

Steamboat  James  Battle  v.  Warning   (Ala.) 89 

Steel  V.  Argentine  M.  Co.  (Idaho) 325,  421,  430 

Steigleman  v.  McBride   (111.) , 398 

Steuberg  v.  Liennemann  (Mont.) 150,  422,  423 

Stephens  v.  Elver  (Wis.) 567 

Stetson  &  Post  M.  Co.  v.  McDonald  ( Wash.) .  .362,  369,  565,  588, 

649,  689 

Stetson  &  Post  M.  Co.  v.  Pacific  A.  Co.  (Wash.) 425,  476 

Stetson-Post  M.  Co.  v.  Brown  (Wash.) 420,  423,  431,  459,  533 

Stevenson  v.  Eedward   (Cal.) 737 

Stevenson  v.  Woodward   (Cal.)  .  .  140,  149,  152,  403,  425,  674,  704,  796 

Steward  v.  Hinkel  (Cal.)   690 

Steward  v.  Koteltas  (N.  Y.) 268 

Stidger  v.  McPhee  (Colo.) 37*6,  682,  702,  703 

Stillman  v.  Wickham  (Iowa) 566 

Stilwell  V.  Eailroad  Co.  (Mo.) Ill 

Stimson  v.  Dunham,  C,  H.  Co.  (Cal.).  .67,  191,  246,  488,  489,  491, 

492,  502,  504,  590,  592,  772,  806 
Stimson  M.  Co.  v.  Braun   (Cal.)  ..28,  33,  37,  38,  39,  47,  161,  216, 

218,  244,  245,  249,  409,  498 
Stimson  M.  Co.  v.  Los  Angeles  T.  Co.  (Cal.)'.  .  .83,  87,  88,  90,  230, 

282,  283,  284,  738 


TABLE    OF    CASES.  XCl 

Pages 

Stimson  M.  Co.  v.  Nolan   (Cal.) 7,  13,  32,  33,  37,  38,  51,  212, 

215,  226,  250,  251,  288,  395,  465,  771 

Stimson  M.  Co.  v.  Kiley  (Cal.) 26,  27,  114,  163,  176,  209,  210, 

213,  214,  274,  306,  307,  365,  493,  545,  554,  555,  563,  665,  699, 

773,  798 

Stinson  v.  Hardy   (Oreg.) 420,  423,  440 

St.  Kevin  M.  Co.  v.  Isaacs  (Colo.) 757,  799 

Stonewall  Jackson  L.  &  B.  Assoc,  v.  McGriider  (Ga.) 31 

Stovell  V.  Neal   (Cal.) (599,  700 

Stowell  V.  Simmons  (Cal.) 5 

Stowell  V.  Waddinghaui  (Cal.) 152,  434,  592 

St.  Paul  &  T.  L.  Co.  V.  Bolton  (Wash.) 421,  424,  430,  431,  458 

Strandell  v.  Moran  (Wash.) 502 

Straus  V.  Finane  (N.  M.) 585,  764 

Stringham  v.  Davis  (Wash.) 105,  114,  162,  572,  573,  647 

Stuart  V.  Broome  (Tex.) 398 

Sullivan  v.  California  E.  Co.  (Cal.) 163,  228,  254,  470,  599,  689 

Sullivan  v.  Grass  Valley  Q.  M.  &  M.  Co.  (Cal.) 173,  258,  630 

Sullivan  v.  Susong  (S.  C.) 188 

Sullivan  v.  Treen  (Wash.) 300,  359,  362,  369 

Summerton  v.  Hanson  (Cal.) 233,  256,  553,  554 

Swanger  v.  Mayberry  (Cal.) 109 

Sweatt  V.  Hunt  (Wash.) 66,  173,  177,  803 

Sweeney  v.  ^tna  I.  Co.  (Wash.) Ill,  534 

Sweeney  v.  Meyer     (Cal.).. 191,  519,  520,  521,  572,  635,  689,  773,  776 

Sweeney  v.  Pacific  C.  E.  Co.  (Wash.) 688 

Swinnerton  v.  Argonaut  L.  &  D.  Co.  (Cal.) 753 

T 

Tabor  v.  Armstrong  (Colo.) 247,  516,  788 

Tabor-Pierce  L.  Co.  v.  International  T.  Co.  (Colo.) 43,  83,  377,  701 

Tacoma  L.  &  Mfg.  Co.  v.  Kennedy    (Wash.)  ..305,  311,  314,  336, 

343,  347 
Tacoma  L.  &  Mfg.  Co.  v.  Wolff    (Wash.)..  16,  335,  336,  343,  608, 

650,  759,  786 

Tally  V.  Ganahl    (Cal.) ' 556,  508,  604,  784 

Tally  V.  Parsons    (Cal.) 188,  550,  558,  568,  604,  621,  784 

Tapia  v.  Demartini  (Cal.) 457,  459,  549 

Tatum  V.  Cherry  (Oreg.) 2,  7,  61,  156,  234,  451 

Taylor  v.  Hill     (Cal.) 40 

Taylor  v.  Jeter    (Mo.) 566 

Taylor  v.  Netherwood    (Va.) 505 

Taylor  v.  Keynolds    (Cal.) 737 

Teahen  v.  Nelson   (Utah). 52,  72,  73,  221,  263,  411,  451,  458,  515,  624 

Tehama  County  v.  Bryan   (Cal.) 708 

Terry  v.  Superior  Court  (Cal.) 790 

Texas,  S.  F.  &  N.  E.  Co.  v.  Orman  (N.  M.) 750 

The  James  H.  Prentice  (Fed.) 738 


Xeil  TABLE   OF    CASES. 

Pages 

The  Victorian   (Oreg.) 787 

Thomas  v.  Barnes    (Mass.) 164 

Thomas  v.  Eock  Island  G.  &  S.  M.  Co.  (Cal.) 485 

Thomason  v.  Eichards  (Cal.) 683,  695 

Thompson,  In  re  (Wash.) 108 

Thompson  v.  Bradbury    (Idaho) 183 

Thompson  v.  Coflfman    (Orcg.) 196,  270,  555,  565 

Thompson  v.  Sken    (Utah) 658 

Thompson  v.  Wise  Boy  M.  &  M.  Co.  (Idaho) 48,  116,  123,  125, 

145,  149,  399,  771 

Thorne  v.  Hammond  (Cal.) 750 

Thurman  v.  Kyle  (Ga.) 84 

Tibbetts   v.   Moore    (Cal.) 87,  88,  311,  315,  331,  332,  347,  354, 

358,  453,  645,  717,  730,  765 
Title  G.  &  T.  Co.  V.  Wrenn  (Oreg.).  .40,  48,  84,  170,  316,  421,  433, 
434,  456,  534,  539,  573,  580,  586,  594,  609,  628,  664,  667,  679, 

730,  772,  773,  774 

Todd  V,  Board  of  Education  (Cal.) 155,  593 

Todd  V.  Franzvog  (Wash.) 562 

Tompkins  v.  Sprout  (Cal.) 641 

Towle  V.  Sweeney  (Cal.) 219,  554,  594,  745,  748 

Townley  v.  Adams  (Cal.) 732 

Townsend  v.  Wild  (Colo.) 45,  47 

Tracy  v.  Craig  (Cal.) 671 

Tredinnick  v.  Eed  Cloud  C.  M.  Co.  (Cal.).. 24,  147,  305,  306,  346, 

348,  354,  356,  359,  399,  409,  462 

Trinity  Parish  v.  iEtna  I.  Co.  (Wash.) 557,  560,  561 

Tritch  V.  Norton  (Colo.) 416,  418,  429,  450,  451,  457 

Truckee  Lodge  v.  Wood  (Nev.) 194,  564,  567 

Trullinger  v.  Kof oed  (Oreg.) 197,  575 

Trumpler  v.  Bemerly  (Cal.) 498 

Trustees  v.  Heise  {Md  ) ! 753 

Tucker  v.  Parks  (Colo.) 671 

Tunis  V.  Lakeport  A.  P.  Assoc.  (Cal.) 396 

Turner  v.  Bellingham  Bay  L.  &  Mfg.  Co.  (Wash.) .  .320,  605,  610,  779 

Turner  v.  Eobbins    (Ala.) 35 

Turner  v.  Sawyer  (U.  S.) 751 

Turner  v.  Strenzel   (Cak) 410,  476,  494,  510,  516,  622 

Tuttle  V.  Block   (Cal.) 44 

Tuttle  V.  Montford   (Cal.) 7,  22,  451,  461,  508,  514,  549 

U 

Union  L.  Co.  v.  Simon  (Cal.) 7,  24,  25,  27,  48,  29/,  304,  347, 

348,  349,  351,  354,  396,  491,  646,  673,  700,  703,  727,  740,  770 

Union  Pac.  E.  Co.  v.  Davidson  (Colo.) 524,  608,  609,  751 

Union  S.  M.  Works  v.  Dodge  (Cal.) 153,  219,  288,  553,  554. 

570,  705,  741 
Union  W.  Co.  v.  Murphy's  Flat  F.  Co    (Cal.) 458 


TABLE   OP    CASES.  XClll 

Pages 

United  M.  Co.  v.  Hatcher  (Fed.) 43,  423 

United  States  v.  Freel    (Fed.) 567 

United  States  v.  Kempland    (Fed.) 91 

United  States  v.  McCann     (Oreg.) 604,  695 

United  States  v.  Mclntyre     (Colo.) 556 

United  States  v.  United  Verde  C.  Co.  (Ariz.) 122 

United  States  Inv.  Co.  v.  Plielps  &  Bigelow  W.  Co.  (Kan.) 84 

United  States  Sav.  L.  &  B.  Co.  v.  Jones  (Wash.) 16,  294,  295, 

298,  307,  312,  314,  333,  336,  338,  343,  716 

Updegraff  v.  Lesem  (Colo.) 149 

Utah  C.  Co.  V.  Montana  P.  &  P.  Co.  (Fed.) 671 

Utah  L.  Co.  V.  James  (Utah) 64,  69,  85,  157,  162,  167,  272,  284 

V 

Valley  L.   Co.  v.   Struck   (Cal.) 185,  187,  189,  210,  211,  221, 

263,  275,  480,  496,  506,  507,  509,  511,  513,  514,  516,  519,  520, 

572,  727,  790,  792 

Valley  L.  Co.  v.  Wright  (Cal.) 15,  25,  457,  549 

Van  Clief  v.  Van  Vechten  (N.  Y.) 247 

Vanderhoof  v.  Shell    (Oreg.) 187,  193,  197,  199,  284,  291,  475, 

621,  683,  693,  811,  814 

Van  Hook  v.  Burns  (Wash.) 183,  799 

Van  Home  v.  Watrous  (Wash.) 183 

Vantilburgh  v.  Black  (Mont.) 765,  778 

Van  Winkle  v.  Stow  (Cal.)..  19,  493,  586,  594,  598,  599,  730,  751,  760 

Vassault  v.  Austin   (Cal.) 658 

Venard  v.  Green    (Utah) 7,  750,  779 

Venard  v.  Old  Hickory  Min.  Co.  (Utah) 750,  779 

Vendome  T.  B.  Co.  v.  Schettler  (Wash.) 143 

Verzan  v.  McGregor  (Cal.) 163 

Victorian,  The  (Oreg.) 787 

Vincent  v.  Snoqualmie  Mill  Co.  (Wash.) 100,  319,  603 

Volker-Scowcroft  L.  Co.  v.  Vance  (Utah) 46,  426 

W 
Wagner  v.  Hansen    (Cal.)... 93,  298,  305,  307,  309,  312,  313,  333, 

342,  353,  361,  654,  712,  714,  720,  735 
Wagner  v.  St.  Peter's  Hospital  (Mont.) 18,  77,  159,  469,  478. 

493,  573,  604,  608,  657,  680 

Wakefield  v.  Van  Corn  (Neb.) 609 

Walker  v.  Buffandeau    (Cal.) 658 

Walker  v.  Hauss-Hijo     (Cal.) 21,  376,  447,  609 

Walling  V.  Warren  (Colo.) 175,  618,  704 

Walsh  V.  McMenomy  (Cal.) 24.5,  409,  425,  427,  483,  495,  496 

Walter  C.  Hadley  Co.  v.  Cummings  (Ariz.) 58,  533 

Wangenheim  v.  Graham  (Cal.) 261 

Ward  V.  Crane  (Cal.) 20,  93,  121,  122,  283.  309,  344,  384,  395. 

396,  635,  716,  721,  793,  795 


Xeiv  TABLE   OP    CASES. 

Pages 

Warren  v.  Ferguson   (Cal.) 685 

Warren  v.  Hopkins     (Gal.) .  .9r),  129,  130,  296,  359,  393,  402,  457,  794 

Warren  v.  Quade    (Wash.) 305,  314,  331,  333,  339,  347,  355,  759 

Washburn  v.  Kahler  (Cal.) 191,  684,  685,  741,  797 

Washington  B.  Co.  v.  Land  &  E.  Imp.  Co.  (Wash.).  .187,  188,  189, 

266,  273,  275.  377,  684 

Washington  B.  L.  &  Mfg.  Co.  v.  Adler  (Wash.) 799 

Washington  I.  W.  Co.  v.  Jensen  (Wash.) 586 

Washington  M.  Co.  v.  Craig  (Wash.) 336 

Washington  R.  P.  Co.  v.  Johnson  (Wash.) 298,  320,  341,  731,  797 

Washington  S.  I.  Co.  v.  Flynn  (Wash.) 551,  561 

Watson  v.- Noonday  M.  Co.  (Orcg.) .  .  .138,  139,  140,  145,  21.5,  399, 

408,  409,  411.  492,  496,  .529,  623 

Watson  V.  Sutro  (Cal.) 775 

Watts  V.  Gallagher  (Cal.) 610,  751 

Way  V.  Oglesby  (Cal.) 658 

Weatherly  v.  Van  Wyck  (Cal.) 83,     87 

Webb  V.  Kuns  (Car.) 709.  713,  718,  723 

Weber  v.  McCleverty  (Cal.) 442.  458 

Wehrung  v.  Denham  (Oreg.) 170,  565 

Weill  V.  Crittenden  (Cal.) 65S,  659 

Weimer  v.  Smith   (Utah) 650 

Weiner  v.  Eumble  (Colo.) 597 

Weinreich  v.  Weinreich   (Mo.) Ill 

Weir  V.  Mead   (Cal.) 554,  555 

Weithoff  V.  Murray  (Cal.) 59,  376,  380,  614,  635,  761 

Welch  V.  Allington    (Cal.) 576 

Welch  V.  Mayer    (Colo.) 485 

Welch  V.  Porter    (Ala.) 458 

Weldon  v.  Superior  Court  (Cal.)..  19,  506,  507,  523,  585,  598,  .599, 

726,  785,  824 

Wells  V.  Cahn   (Cal.) 514,  624 

West  Coast  L.  Co.  v.  Apfield    (Cal.) 150,  274,  318,  327,  331, 

422,  434,  438,  460,  606,  672,  742,  782,  798 
West  Coast  L.  Co.  v.    Knapp    (Cal.).. 27,  156,  163,  164,  176,  209, 

214,  226,  227,  229,  232,  240,  256,  692 

West  Coast  L.  Co.  v.  Newkirk    (Cal.) 91,  322,  323,  324,  422, 

434,  629,  630,  638,  661,  672,  674,  688,  768,  776 
Western  I.  W.  v.  Montana  P.  &  P.  Co.  (Mont.).  .26,  169,  297,  348, 

350,  355,  356,  394,  396,  456,  704,  740 

Western  L.  Co.  v.  Phillips  (Cal.) 610,  656,  736,  757,  773,  799 

Western  P.  Co.  v.  Fried    (Mont.) 363.  584 

Wetzel  &  T.  R.  Co.  v.  Tennis  Bros.  Co.  (Fed.) 53 

Whalen  v.  Harrison  (Mont.) 163 

Wheeler  v.  Port  Blakeley  M.  Co.  (Wash.) 312 

Wheeler  v.  Ealph    (Wash.) 300,  359,  586,  688,  725,  732.  775 

Wheeler.  Osgood  &  Co.  v.  Everett  L.  Co.  (Wash.) 551,  560.  565 

White  V.  Fresno  Nat.  Bank   (Cal.) 229,  233,  269,  663,  795,  800 


TABLE    OF    CASES.  XCV 

Pages 

White  V.  Mnllins   (Malio) 22,  325,  333 

Whito  V.  San  Rafael  &  S.  Q.  R.  Co.  (t'al.) 194 

White  V.  Soto  (Cal.) 261,  383,  595,  617,  619,  690,  727 

Whiteside  v.  Lebcher     (Mont.) 22,  348,  506 

Whiteside  v.  School  Dist.   (Mont.) 154 

Whitley,  Ex  parte  (Cal.) 3 07 

Whitney  v.  Higgins  (Cal.) 4,  ]5,  573,  586,  609,  611,  751 

Whittier  v.  Blakely  (Oreg.) 293,  315,  481,  491 

Whittier  v.  Fuller  (Cal.) 667 

Whittier  v.  Hollister  (Cal.) 51G,  624 

Whittier  v.  Puget  Sound  L.  T.  &  B.  Co.  (Wash.) 84.  530 

Whittier  v.  Stetson  &  P.  M.  Co.  (Wash.) ..  .88,  298,  349,  351,  352, 

355,  357,  579 

Whittier  v.  Wilbur    (Cal.) 38,  70,  71,  198,  411,  477,  495,  574 

Wiekersham  v.  Crittenden  (Cal.) 159 

Wiethoff  V.  Murray  (Cal.) 106 

Wiggins  V.  Bridge  (Cal.) 411,  483,  510.  514,  622 

Wilbur  V.  Lynde  (Cal.) 159 

Wilcox  V.  Keith  (Oreg.) 160,  615,  630 

Wilkin  V.  Ellenburgh  W.  Co.  (Wash.) 173 

Wilkins  v.  Abell  (Colo.)    23,  160,  420,  422,  468,  533,  615,  630 

Willamette  Falls  Co.  v.  Perrin  (Oreg.) 594 

Willamette  Falls  Co.  v.  Riley  (Oreg.). 451,  463,  600,  631,  753,  754,  782 

Willamette  Falls  Co.  v.  Smith  (Oreg.) 634 

Willamette  Falls  T.  &  M.  Co.  v.  Remick  (Oreg.) ..  .110,  119,  131, 

300,  403,  406 

Willamette  Falls  T.  &  M.  Co.  v.  Riley  (Oreg.)) 41,  43,  44,  395 

Willamette  S.  M.  Co.  v.  Kremer  (Cal.) 229,  242,  250,  273.  274, 

350,  351,  353,  355,  390,  396,  403,  644,  645,  646,  673,  685,  703, 

713,  727,  763,  765,  766 

Willamette  S.  M.  L.  &  Mfg.  Co.  v.  Los  Angeles  (College  Co.  (Cal.).  . 

112,  163,  164,  215,  229,  230,  232,  233,  235,  236,  238,  240,  246, 

250,  251,  252,  253,  255,  256,  265,  273,  274,  280,  281,  282,  285, 

287,  288,  876,  377,  384,  388,  390,  409,  481,  482,  499,  663,  685, 

686,  703,  704,  707,  726,  728,  744,  752 

Willamette  S.  M.  L.  &  Mfg.  Co.  v.  McLeod    (Oreg.) 310,  321, 

324,  325,  331,  583 

Willamette  S.  M.  L.  &  Mfg.  Co.  v.  Shea    (Oreg.) 16,  25,  300, 

301,  360,  402,  406 

Williams  v.  Bradford    (N.   ,].) 89 

Williams  v.  Eldora-Enterprise  M.  Co.  (Colo.) 422 

Williams  v.  Gaston     (Cal.) 776 

Williams  v.  Hawley  (Cal.) 123,  127,  436,  533,  677,  680,  733,  795 

Williams  v.  Mountaineer  G.  M.  Co.  (Cal.).. 8,  94,  96,  97,  116,  125, 
126,  138,  139,  140,  142,  143,  146,  279,  358,  391,  408,  409,  451, 

462,  586 
Williams  v.  Rowell  (Cal.) 148,  599 


XCVl  TABLE    OF    CASES. 

Pages 

Williams  v.  Santa  Clara  M.  Assoc.   (Cal.) 52,  93,  94,  96,  120, 

125J  145,  146,  433,  437,  440,  442,  447,  457 
Williams  T.  Toledo  C.  Co.    (Orcg.) .  .  .114,  122,  123,  145,  303,  306, 

345,  580 

Williams  v.  Uncompahgre  C.  Co.  (Colo.) 4,  23,  205,  457,  532,  585 

Wilson  V.  Barnard  (Cal.) 235,  333,  409,  411,  495,  624 

Wilson  V.  Donaldson  (Cal.) 447 

Wilson  V.  Hind  (Cal.) 74,  80,  83,  715,  716 

Wilson  V.  Nugent  (Cal.)... 83,  87,  91,  93,  132,  212,  333,  334,  488, 

492,  664,  681,  711,  714,  715 

Wilson  V.  Samuels  (Cal.) 478,  488,  489,  509,  581,  582 

Wimberly  v.  Mayberry  (Ala.) 35 

Windham  v.  Independent  Tel.  Co.  (Wash.).  Ill,  188,  189,  275,  282,  803 

Winrod  v.  Wolters  (Cal.) 16 

Wisconsin  E.  P.  B.  Co.  v.  Hood  (Minn.) 247 

Wolfley  V.  Hughes   (Ariz.) 316,  368,  700,  714 

Wollenberg  v.  Sykes  (Oreg.) 534,  555 

Wood  V.  Oakland  &  B.  E.  T.  Co.  (Cal.).  .  .240,  493,  606,  607,  620, 

637,  650,  652,  762,  798 

Wood  V.  Wrede  (Cal.) 22,  305,  307,  308,  329 

Woodbury  v.  Grimes  (Colo.) 41,     42 

Worden  v.  Bear  Valley  Irr.  Co.  (Cal.) 34 

Worden  v.  Hammond    (Cal.) 163,  228,  417,  423,  585,  586,  642,  691 

Wortman  v.  Kleiuschmidt  (Mont.) 48,  194,  767,  771,  774 

Wortman  v.  Montana  C.  E.  Co.   (Mont.)  .  .165,  172,  177,  181,  183, 

184,  269,  270,  731,  807 

W.  P.  Fuller  &  Co.  v.  Eyan  (Wash.) 88 

W.  W.  Montague  &  Co.  v.  Turness  (Cal.) 47,  218 

Wright  V.  Cowie  (Wash.) 319,  403,  610 

Wright  V.  Levy    (Cal.) 518,  543 

Wyckoff  V.  Meyers  (N.  Y.) 268 

Wyman  V.  Hooker  (Cal.) 111,  187,  195,  282,  470,  471,  540,  621, 

651,  683,  694 
Wyman  v.  Quayle  (Wyo.) 6,  24,  297,  298,  322,  323,  492,  628 

Y 

Yancy   v.   Morton    (Cal.) 26,  164,  209,  213,  214,  225,  233,  237, 

606,  607,  626,  627,  628,  694,  698,  799,  801 

Yerrick  v.  Higgins  (Mont.) 26,  306 

Young  V.  Borzone   (Wash.).. 39,  117,  129,  168,  258,  31*0,  328,  475, 

725,  791,  824 

Young  V.  Gaut  (Ark.) 187 

Young  V.  Howell  (Wash.) 347 

Z 

Zindorf  Cons.  Co.  v.  Western  A.  Co.  (Wash.) 183 


PAET  I. 
SUBSTANTIVE  LAW,  OR  PRIMARY  RIGHTS. 


CHAPTER  I. 

HISTORY,  SPIRIT,  NATURE,  AND  CONSTRUCTION  OF  THE  LAW. 

§    1.  Introductory. 

§  2.  General  divisions  of  subject.  California  statute  distin- 
guished. 

§    3.  Questions  raised  in  the  decisions. 

§    4.  Historical. 

§    5.  Evolution  of  California  mechanic's-lien  law. 

§    6.  Spirit  of  the  law. 

§    7.  Theory  of  the  mechanic's-lien  law. 

§    8.  A  favored  lien. 

§    9.  General  nature  of  the  lien.     Plan  of  discussion. 

§  10.  I.  General  classification  of  liens  of  this  character. 

§  11.  Another  classification. 

§  12.  The  classification  adopted  herein. 

§  13.  Same.  Contractual  relation  between  owner  and  original 
contractor, 

§  14.  Same.     Valid  and  void  contract.     Effect. 

§  15.  Same.     The  object  or  thing  to  which  the  lien  attaches. 

§  16.  Same.     Lien  on  structure  separate  from  land. 

§  17.  Same.     Lien  on  the  fund. 

§  18.       II.  The  kinship  between  statutes  of  the  various  states. 

§  19.  III.  The  general  peculiarities  of  mechanics'  liens. 

§  20.  Relation  of  lien  to  the  debt. 

§  21.  Mechanic's  lien  and  mortgage  compared. 

§  22.  Nature  of  action  to  foreclose  lien. 

§  23.  Nature  and  scope  of  right  conferred. 

§  24.  Construction  of  mechanic's-lien  statutes.  Scope  of  discus- 
sion. 

§  25.  Same.     Confusion  in  the  authorities. 

§  26.  Same.     Penal  provisions. 

§  27.  Same.     Resume. 

§  1.     Introductory.     There  is,  perhaps,  no  other  subject 
in  the  wide  domain  of  the  law  which  requires  more  careful 

Mech.  Liens  —  1  (1) 


§  ]  MECHANICS'   LIENS.  2 

study  of  statutes  and  decisions  of  one's  own  state  than  that 
of  mechanics'  liens.  Mr.  Stimson  ^  says :  "  There  is  no  sub- 
ject in  the  statute-book  upon  which  there  is  more  general 
and  frequent  amendment  and  revision  than  this.  Since  the 
original  edition  of  this  work,  nearly  half  of  the  states  in  the 
Union  have  either  patched  up  their  old  statutes  [relating 
to  and  regulating  mechanics'  liens]  or  adopted  entirely  new 
ones,  all  of  which  are  complex,  elaborate,  and  far  from  clear. 
It  seems  hardly  worth  while  to  occupy  much  space  with 
a  detailed  statement  of  these  changes,  which,  after  all, 
concern  a  subject  of  merely  local  importance."  -  And  that 
diligent  investigator  was  compelled  to  admit  the  practical 
difficulty  of  bringing  order  out  of  this  statutory  chaos. 

It  it  obvious  that,  under  such  circumstances,  the  decisions 
of  other  states,  rendered  upon  a  view  of  the  entire  statute 
on  this  subject,  and  not  upon  that  of  a  segregated  portion, 
will  in  many  cases  throw  but  little  light  upon  the  problem. 
Indeed,  the  practising  attorney  will,  by  reason  of  the  many 
changes  in  the  statute,  often  find  it  difficult  to  reconcile 
the  apparently  conflicting  decisions,  and  ascertain  the 
exact  condition  of  the  expressed  law  in  his  own  state.  The 
supreme  court  of  California,  adverting  to  this  difficulty, 
has  said :  "  It  must  be  remembered  that  the  mechanic's-lien 
laAv  of  this  state  has  been  changed  at  nearly  every  session 
of  the  legislature  since  the  first  statute  on  the  subject  was 
passed,  and.  that  many  former  decisions  of  this  court  in 
relation  to  it  rested  upon  provisions  not  now  in  exist- 
ence." ^ 

The  only  safe  course  for  the  practitioner  to  follow  is  to 
read  and  weigh  each  decision  in  connection  with  the  letter 
of  the  statute  in  force  at  the  time  the  particular  decision 
was  rendered. 

>  American   Statute  Law,    1st  Suppl.,   p.   30. 

==  For  an  admirable  iUustration  of  the  technicality  of  the  subject, 
see  Palmer  v.  Lavigne,  104  Cal.  30,  31,  37  Pac.  Rep.  775. 

AVa!<Iiingtoii.  See  Huttig  Bros.  Mfg-.  Co.  v.  Denny  Hotel  Co.,  6 
Wash.   122,   129,  32  Pac.  Rep.  1073. 

3  Booth  V.   Pendola,  88  Cal.   36,   44,   23  Pac.  Rep.   200,   25  Id.   1101. 

Colorado.     See  Aste  v.  Wilson,  14  Colo.  App.  323,  59  Pac.  Rep.  846. 

Oregon.     See  Tatura  v. "Clierry,  12  Oreg.  135. 


3  SCOPE   AND  CONSTRUCTION   OF   THE  LAT^'.  §§  2,  3 

§  2.  General  divisions  of  subject.  California  statute  dis- 
tinguished. In  the  California  mechanic's-lien  law  there  are 
three  classes  of  subjects  or  work,  etc.,  for  which  liens  are 
provided,  running  through  the  statute.*  These  are :  1.  Liens 
upon  "  structures,"  under  section  eleven  hundred  and  eighty- 
three;  2.  Liens  upon  mining  claims  and  mines,  under  the 
provisions  of  the  same  section ;  and  3.  Liens  for  street-work, 
etc.,  under  the  provisions  of  section  eleven  hundred  and 
ninety-one.  Some  of  the  provisions  of  the  code  regarding 
mechanics'  liens  have  been  held  to  be  applicable  to  one  or 
another  of  the  classes  above  named,  but  not  to  all.  This 
fact  is,  perhaps,  one  of  the  greatest  sources  of  uncertainty 
and  confusion  in  construing  and  applying  the  California 
statute. 

Other  states  have  avoided  these  difficulties,  or  some  of 
them,  by  passing  separate  laws  governing  the  three  classes 
of  liens  above  enumerated  as  being  provided  for  in  one 
statute  under  the  California  mechanic's-lien  law. 

§  3.  Questions  raised  in  the  decisions.  The  courts,  in 
passing  upon  the  subject-matter  of  the  state's  mechanic's- 
lien  law,  raise  the  following  questions,  among  others:  1.  Is 
the  lien  given  primarily  upon  the  structure  or  upon  the 
land?*^  2.  Is  the  lien  upon  the  land  and  appurtenances  or 
upon  the  fund?  3.  Is  the  lien  limited  by  the  original  con- 
tract price  ?  or  is  it  direct,  either  for  the  value  of  the  work 
or  material,  or  for  the  price  as  expressly  contracted  for  by 
the  claimant?  According  to  the  holdings  on  these  questions 
is  the  rule  established,  and  successive  decisions  in  the  same 
.state  often  create  .shades  of  distinction  which  render  unset- 
tled what  had  before  been  deemed  definitely  determined. 

*   Kerr's  Cye.  Code  Civ.  Proc,   §§  1183-1203a. 

*»  Lien  on  land  or  structure?  In  this  connection  the  case  of 
Humboldt  L.  &  M.  Co.  v.  Crisp,  146  Cal.  686,  2  Am.  &  Eng.  Ann. 
Cas.  811.  81  Pac.  Rep.  30,  106  Am.  St.  Rep.  75,  is  of  interest.  In  that 
case  the  court  held  that  under  the  California  mechanic's-lien  law.  no 
mechanic's  lien  can  attach  to  the  land  for  labor  or  material  fur- 
nislied  in  the  erection  of  a  building  which  was  destroyed  by  fire 
before  its  completion.  See  Hogan  v.  Globe  Mut.  B.  &  L.  Assoc,  140 
Cal.  610,   74  Pac.  Rep.  153. 

There  is  some  t-onflirt  in  the  deoinions  on  this  point.  The  cases 
are  all  collected  in  a  note  in  2  Am.  &  Bng.  Ann.  Cas.  812. 


§  i  MECHANICS'   LIENS.  4 

Inadvertent  statements  in  arguendo  and  in  dictum  fre- 
quently cast  doubt  upon  well-considered  doctrine,  and  thus 
render  iiivesti  gat  ions  in  this  field  exceedingly  perplexing. 

§  4.  Historical.  Liens  by  contractors,  subcontractors, 
material-men,  mechanics,  or  laborers  for  work  done  or  mate- 
rial furnished  upon  a  building  or  other  structure  were 
unknown  to  the  common  law  or  in  equity  jurisprudence,^ 
both  in  England  and  in  this  country;  but  they  were  clearly 
defined  and  regulated  in  the  civil  law.''  Where  they  exist 
in  this  country,  they  are  the  creations  of  local  legislation.^ 

5  Ellison  V.  Jackson  W.  Co.,  12  Cal.  542,  554;  McNeil  v.  Borland,  23 
Gal.  144,  148;    Spinney  v.  Griffith,  98  Cal.  149,  151,  32  Pac.  Rep.  974. 

Alaska.     Jorg-ensen  v.  Sheldon,  3  Alas.  607. 

Colorado.  Greeley  Co.  v.  Harris,  12  Colo.  226,  20  Pac.  Rep.  764; 
Chicago  L.  Co.  v.  Newcomb,  19  Colo.  App.  265,  74  Pac.  Rep.  786,  791; 
Barnard  v.  McKenzie,  4  Colo.  251;  Pitschke  v.  Pope,  20  Colo.  App.  328, 
78  Pac.  Rep.   1077. 

Hawaii.     Hackfeld  v.   Hilo   R.   Co.,   14    Hawn.   448,    451. 

Montana.     Mochon  v.  Sullivan,  1  Mont.  472. 

New  3Iexico.  Ford  v.  Springer  L.  Assoc,  8  N.  M.  37,  48,  41  Pac. 
Rep.  541. 

«  South  Fork  C.  Co.  v.  Gordon,  73  U.  S.  (6  W^all.)  561,  18  L.  ed.  894; 
Macondray  v.  Simmons,  1  Cal.  393,  395. 

New  Mexico.  Ford  v.  Springer  L.  Assoc,  8  N.  M.  37,  48,  41  Pac. 
Rep.   541;   Minor  v.  Marshall,   6  N.   M.  195,   27  Pac.  Rep.   481. 

'  California.  See  Whitney  v.  Higgins,  10  Cal.  547,  70  Am.  Dec.  748; 
McCrea  v.  Craig,  23  Cal.  522;  Phelps  v.  Maxwell's  Creek  G.  M.  Co.,  49 
Cal.  336;  Morris  v.  Wilson,  97  Cal.  644,  32  Pac.  Rep.  801;  Spinney  v. 
Griffith,  98  Cal.  149,  32  Pac.  Rep.  974;  McLaughlin  v.  Perkins,  102  Cal. 
502,  36  Pac.  Rep.  839. 

Colorado.  See  Barnard  v.  McKenzie,  4  Colo.  251;  Greeley  S.  L.  «& 
P.  R.  Co.  V.  Harris,  12  Colo.  226,  20  Pac.  Rep.  764;  Williams  v.  Uncom- 
pahgre  Canal  Co.,  13  Colo.  469,  22  Pac  Rep.  806;  Hanna  v.  Colorado 
Sav.  Bank,  3  Colo.  App.  28,  .31  Pac.  Rep.  1020;  Estey  v.  Hallack  &  H. 
L.  Co.,  4  Colo.  App.  165,  34  Pac.  Rep.  1113;  Florman  v.  School  Dist., 
6  Colo.  App.  319,  40  Pac.  Rep.  469;  Johnston  v.  Bennett.  6  Colo.  App. 
362,  40  Pac.  Rep.  847;  Sayre-Newton  L.  Co.  v.  Union  Bank,  6  Colo. 
App.  541,  41  Pac.  Rep.  844;  Small  v.  Foley,  8  Colo.  App.  435,  47  Pac. 
Rep.  64;  Cornell  v.  Conine-Eaton  L.  Co.,  9  Colo.  App.  225,  47  Pac. 
Rep.  912;  Aste  v.  Wilson,  14  Colo.  App.  323,   59   Pac.  Rep.  846. 

New  Mexico.  See  Finane  v.  Las  Vegas  Hotel  &  Imp.  Co.,  3  N.  M. 
256,  5  Pac.  Rep.  725;  Houghton  v.  Las  Vegas  Hotei  &  Imp.  Co.,  3 
N.  M.  419.  5  Pac.  Rep.  729;  Boyle  v.  Mountaineer  M.  Co.,  9  N.  M.  237, 
50  Pac.  Rep.   347.   352. 

The  flr.st  niechanic's-lien  act  was  passed  in  1791  by  the  general 
assembly  of  :Maryland,  at  the  solicitation  of  a  commission  of  which 
Thomas  Jefferson  and  James  Madison  were  member's,  and  was  in- 
duced by  a  desire  to  encourage  the  rapid  building  up  of  the  city  of 
Washington  as  a  permanent  seat  of  government:  Boyle  v.  Moun- 
taineer M.  Co.,  9  N.  M.  23T,  50  Pac.  Rep.  347,   352. 

Oregon.     See  Pilz  v.  Killingsworth,   20  Oreg.  432,   26  Pac.  Rep.  305. 


5  SCOPE   AND  CONSTRUCTION   OF  THE  LAW.  §  D 

They  are  governed  in  everything  by  the  statutes  under 
which  they  arise,  and  these  statutes  differ  widely  in  differ- 
ent states,*'  although  mining  interests  have  in  some  measure 
tended  to  produce  a  degree  of  uniformity  among  those  of 
the  Pacific  Coast  states. 

§  5.     Evolution   of  California  mechanic's-lien  law.     The 

present  mechanic's-lien  law  of  California  is  an  evolution 
from  prior  statutes  of  the  state  upon  the  same  subject, 
resulting  from  a  desire  of  the  legislature  to  adjust  the 
respective  rights  of  lien  claimants  and  those  of  the  owners 
of  the  property  improved  by  their  labor  and  material.^  This 
statute  is  provided  for  hy  the  state  constitution,  and  is 
embodied  in  the  California  codes.^°    There  has  been  no  gen- 

*  South  Fork  C.  Co.  v.  Gordon,  73  U.  S.  (6  WaU.)  561,  18  L,.  ed.  894, 
on  appeal  from  1  McAl.  513,   10  Fed.  Cas.,  p.  817. 

The  fundanieutal  idea  of  the  luechauic's-lieM  la-*v  was  probably 
more  immediately  borrowed  from  the  maritime  liens  given  to 
material-men  and  seamen  in  admiralty  for  materials  furnislied  and 
labor  performed  on  vessels,  and  such  liens,  unlike  common-law  liens, 
were  not  dependent  upon  possession.  The  maritime  lien  was,  of 
course,  borrowed  from  the  civil  law.  The  idea  of  a  mechanic's  lien, 
however,  certainly  did  not  follow  all  those  systems  founded  upon 
the  civil  law,  at  least  so  far  as  real  property  is  concerned.  Thus 
under  the  law  of  Mexico,  the  person  who  furnished  materials  for 
the  erection  of  a  building  had  no  lien  upon  the  building  to  secure 
payment  for  the  same  (Macondray  v.  Simmons,  1  Cal.  393,  395: 
Stowell  V.  Simmons,  1  Cal.  452),  although  such  a  lien  was  awarded 
to  the  person  who  lent  money  for  the  purpose  of  building,  repairing, 
and, supplying  a  ship,  house,  or  other  building,  or  for  labor  thereon: 
Macondray  v.  Simmons,   1  Cal.   393,   395. 

»  Corbett  v.  Chambers,  109  Cal.  178,  181,  41  Pac.  Rep.  873. 

'"  Cal.  Const.  1879,  art.  xx,  §  15,  Henning'N  General  Laws,  p.  civ; 
Kerr's  Cyc.  Code  Civ.  Proc,  §§  1182-1203a,  and  IverrVs  Cjc.  Civ.  Code, 
§  3059. 

It  is  not  quite  apparent  why  the  legislature  has  placed  in  a  por- 
tion of  the  statute  expressly  reserved  for  procedure  provisions  estab- 
lishing primary  rights,  except,  perliaps,  from  a  desire  to  keep  the 
provisions  together. 

Statutes  of  other  states  and  territories.  The  following  tabulation 
shows  the  statutes  of  the  Pacific  states  and  territories,  other  than 
California,  which  embrace  the  subject  of  mechanics'  liens,  without 
reference  to  amendments  or  special  statutes  relating  to  particular 
Uens: 

Alaska.  Carter's  Civ.  Code  1900,  pt.  v,  §§  262-275  (act  of  Cong., 
June  6,  1900.  ch.  Ixxvi),  31  Stats,  at  L.,  p.  321;  3  Gould  and  Tucker's 
Notes  Rev.  Stats.  U.  S.,  pp.  224,  337;   10  Fed.  Stats.  Ann.,  p.  282. 

ArlKona.     Rev.  Stats.  1901,  tit.  xl,  §§  2888-2934. 

Colorado.     3  Mills's  Ann.  Stats.,  2d  ed.,  §§  2867-2891. 


§  6  MECHANICS'   LIENS.  6 

eral  revision  of  the  California  mechanic's-lien  law  since  the 
adoption  of  the  codes,  but  changes  have  been  made  through 
amendments  and  modifications  of  and  additions  to  the 
various  sections  thereof/^ 

§  6.  Spirit  of  the  law.  The  mechanic's-lien  law  is  in- 
tended to  give  to  persons  of  ordinary  intelligence  the  means 
by  which  they  may  secure  themselves  for  their  work  and 
materials,  not  to  provide  a  snare  to  involve  them  in  the 
intricacies  of  the  law;    for  they  are  not  presumed  to   be 

Modeled  after  California  statute.  The  statute  of  Colorado  (Stats. 
1903,  ch.  cxvii,  p.  315,  was  evidently  modeled  upon  that  of  California: 
See  Chicago  Lumber  Co.  v.  Newcomb,  19  Colo.  App.  265,  74  Pac.  Rep. 
786,    789. 

Tlie  act  of  1883  remained  in  force  for  six  years;  it  was  amended 
in  1889,  again  in  1891,  and  still  again  in  1893:  Griffin  v.  Seymour, 
15  Colo.  App.  487,   63  Pac.  Rep.  809. 

The  act  of  1893  was  repealed  and  a  new  act  passed  in  1899.  The 
latter  act  contained  many  of  the  provisions  of  the  act  of  1893,  as 
well  as  some  additional  ones:  Burleigh  Bldg.  Co.  v.  Merchant  Brick 
and  Bldg.  Co.,   13  Colo.  App.  455,  460,  59  Pac.  Rep.  83,  84. 

Hawaii.     Rev.  Stats.  1905,  tit.  xviii,  ch.  cxl,  §§  2173-2178. 

Idaho.     Sess.    Laws   1899,   p.    147,   and  act   approved  March    14,    1899. 

By  the  act  of  1893,  the  entire  theory  of  the  Idaho  mechanic's-lien 
law  was  changed.  See,  for  history,  dissenting  opinion  of  Ailshie,  J., 
in  Pacific  States  S.  L.  &  B.  Co.  v.  Dubois,  11  Idaho  319,  83  Pac.  Rep. 
513,   516. 

Montana.     Code  Civ.  Proc,   §§  2130-2141,   3942. 

Nevada.     Cutting's  Comp.  L.   1900,  §§  3881-3900. 

New  Mexico.     Comp.  Laws  1897,  tit.  xxiv,  §§  2216-2232. 

Oklahoma.      2  Rev.  Stats.   1903    (4817-4831),   §§  619-633. 

Oregon.  2  Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §§  5481- 
5484,   5653-5659,   5663-5672. 

Utah.  Rev.  Stats.  1898,  ch.  i,  tit.  xxxix,  §§  1372-1400.  See  Eccles 
Lumber  Co.  v.  Martin   (Utah),  87  Pac.  Rep.  713,  715. 

^Va8hington.     Pierce's   Code,    §§  6102-6121,    6133-6137. 

Wyoming.  Rev.  Stats.  1899,  §§  2868-2910.  This  statute  was  taken 
substantially  from  the  statute  of  Missouri:  Big  Horn  L.  Co.  v.  Davis, 
14  Wyo.  455,  84  Pac.  Rep.  905,  85  Id.  1048,  citing  W^yman  v.  Quale, 
9  W^yo.  326,  63  Pac.  Rep.  988. 

"  Santa  Cruz  Rock  Pa  v.  Co.  v.  Lyons,  133  Cal.  114,  117,  65  Pac. 
Rep.   329. 

The  owner  of  the  land,  in  most  instances,  is  the  person  this  law 
deals  with;  but  in  some  cases  it  provides  that  the  owner,  and  any 
other  person  having  an  interest  in  the  land,  shall  be  bound  when 
the  improvement  is  made  with  his  knowledge,  unless  he  shall  within 
a  certain  time  give  the  notice  required  by  statute  (Kerr's  Cyc.  Code 
Civ.  Proc,  §  1192):  Santa  Cruz  Rock  Pav.  Co.  v.  Lyons,  supra. 

Reputed  owner  cannot  bind  property  for  street  improvements, 
etc.:  Santa  Cruz  Rock  Pav.  Co.  v.  Lyons,  117  Cal.  212,  48  Pac.  Rep. 
1097,  59  Am.  St.  Rep.  174. 


7  SCOPE   AND  CONSTRUCTION   OF  THE  LAW.  §  7 

versed  in  such  niceties  as  those  of  pleading/-  nor  to  be 
adepts  in  accuracy  of  expression. ^^  "  The  legislature  has 
industriously  endeavored  by  extreme  means  not  only  to  pro- 
tect and  favor  mechanics  and  laborers  who  actually  w^ork 
on  buildings  (which  seems  to  have  been  the  original  notion 
of  a  '  mechanic's  lien  '),  but  also  certain  merchants,  who  are 
brought  in  under  the  category  of  '  material-men.'  "  ^* 

§  7.  Theory  of  the  mechanic's-lien  law.  The  general 
principle  upon  Avhich  all  mechanic's-lien  laws  are  based  is, 
that  they  are  remedial  in  their  nature,^^  intended  to  aid  con- 
tractors, material-men,  mechanics,  and  laborers  to  secure  the 
just  or  contract  price  for  materials  furnished,  money  ex- 
pended, labor  furnished  or  done  upon  property,  on  the  theory 
that  the  material  used  in  or  labor  expended  upon  the  specific 
property  has  enhanced  its  value,^®  and  that  it  is  equitable 

'=  Corbett  v.  Chambers,  109  Cal.  178,  184,  41  Pac.  Rep.  873;  Union 
Lumber  Co.  v.  Simon  (Cal.  App.,  Marcii  13,  1906),  89  Pac.  Rep.  1077, 
1078. 

Utah.  The  law  is  not  for  poor  persons  only,  but  also  for  those 
who  can  bring  themselves  within  its  terms:  Venard  v.  Green,  4  Utali 
67,   6  Pac.  Rep.  415.   7  Id.  408. 

"  Union  Lumber  Co.  v.  Simon  (Cal.  App.,  March  13,  1906),  89  Pac. 
Rep.   1077,   1078,  atf.  in  sup.  ct.,   89  Pac.  Rep.  1081. 

"  Booth  V.  Pendola,  88  Cal.  36,  42,  23  Pac.  Rep.  200,  25  Pac.  Rep. 
1101.     See  §§  42-44,  post. 

Colorado.  As  to  such,  statutes  being  special  or  class  legislation, 
see  Rice  v.  Carmichael,  4  Colo.  App.  84,  86,  34  Pac.  Rep.  1010;  Ander- 
son V.  Bingham,   1   Colo.  App.   222,   28   Pac.  Rep.   145. 

See  §§  6  et  seq.,  post. 

Oregon.  It  is  a  "privilege":  Horn  v.  United  States  Min.  Co.,  47 
Oreg.  124,  81  Pac.  Rep.  1009;  Hughes  v.  Lansing,  34  Oreg.  118,  55  Pac. 
Rep.  95,  96,  75  Am.  St.  Rep.  574;  Brown  v.  Harper,  4  Oreg.  89,  Gray  v. 
Jones,   47  Oreg.  40,   81   Pac.  Rep.   813. 

"Extraordinary  right":  Tatum  v.  Cherry,  12  Oreg.  135,  6  Pac.  Rep. 
715    (1874). 

Utah.  "Privilege":  Dwyer  v.  Salt  Lake  City  Mfg  Co.,  14  Utah 
339,  47  Pac.  Rep.  311. 

"  Union  L.  Co.  v.  Simon  (Cal.  App.,  March  13,  1906),  89  Pac.  Rep. 
1077,   1078. 

See  §§  9,  25,  post. 

16  Hamilton  v.  Delhi  M.  Co..  118  Cal.  148,  154,  50  Pac.  Rep.  378; 
Birch  v.  Magic  Transit  Co.,  139  Cal.  496,  498,  73  Pac.  Rep.  238;  and 
see  Tuttle  v.  Montford,  7  Cal.  358,  360;  McCrea  v.  Craig,  23  Cal.  523, 
525;  Humboldt  L.  M.  Co.  v.  Crisp,  146  Cal.  686,  2  Am.  &  Eng.  Ann. 
Cas.  811,  81  Pac.  Rep.  30,  106  Am.  St.  Rep.  75;  Stimson  M.  Co.  v.  Nolan 
(Cal.  App.,  June  19.  1907),  91  Pac.  Rep.  262.  But  see  Dore  v.  S^'lers, 
27   Cal.   588,    594    (1862). 

Labor  on  a  mining  claim,  on  the  other  hand,  "  cannot  generally  be 
said  to  have  contributed  to  the  creation  of  the  property   or  added  to 


§7 


MECHANICS'   LIENS. 


that  the  material-man  should  follow  his  material  into  the 
building  of  which  it  has  become  a  component  part,  or  that 

its  value;  on  the  contrary,  it  may  diminish  its  value,  perhaps  render 
it  valueless":  Williams  v.  Mountaineer  G.  M.  Co.,  102  Cal.  134,  139, 
34   Pac.   Rep.   702,   26   Id.   388. 

Work  in  "developing"  or  showing  up  the  riches  of  a  mine  is  cer- 
tainly considered  among  mining  men  to  be  of  great  value  to  such 
property.  Indeed,  until  a  piece  of  mining-ground  is  thus  "  proved," 
it  does  not,  in  the  view  of  those  engaged  in  the  business,  rise  to  the 
dignity  of  a  "  mine."  In  view  of  the  general  extension  of  this  class 
of  legislation  to  objects  other  than  those  originally  contemplated  by 
the  statutes,  namely,  "  structures,"  the  adjudicated  doctrine  set  forth 
in  the  text  must  be  considered  inadequate  to  express  the  real  prin- 
ciple underlying  this  growth  of  legislation.  The  tentative  sugges- 
tion is  made  that  the  principle  is,  that  property,  or  an  interest 
therein,  owned  by  one  who  receives  such  a  benefit  through  or  by 
means  of  the  same,  should  be  held  as  security  for  the  value  con- 
ferred. 

Colorado.  Barnard  v.  McKenzie,  4  Colo.  251,  252;  Lindemann  v. 
Belden  Cons.  M.  &  M.  Co.,  16  Colo.  App.  342,  65  Pac.  Rep.  403.  "  The 
construction  of  a  building  involves  the  co-operation  of  a  variety  of 
agencies.  It  is  not  built  by  the  original  contractor  himself.  It  is 
true  that  he  undertakes  its  construction,  but  to  enable  him  to  execute 
his  contract  he  must  rely  to  a  greater  or  less  extent  upon  others. 
The  accomplishment  of  the  work  requires  the  purchase  of  material 
and  the  employment  of  mechanical  and  other  labor,  of  all  of  which 
the  owner  receives  the  benefit.  The  purpose,  generally,  of  laws  pro- 
viding for  mechanics'  liens  is  to  afford  some  measure  of  security  to 
those  whose  property  and  services  have  entered  into  the  improve- 
ment, and  such  laws  have,  as  a  rule,  been  upheld  by  the  courts": 
Chicago  L.  Co.  v.  Newcomb,  19  Colo.  App.  265,  74  Pac.  Rep.  786,  788. 

Hawaii.  "The  statute  is  artificial — arbitrary.  It  gives  the 
material-man  exceptional  privileges,  but  it  gives  these  only  on  con- 
dition that  he  shall  comply  with  the  terms  of  the  statute":  Allen  v. 
Redward,  10  Hawn.  151,  157. 

Montana.  A.  M.  Holter  Hardware  Co.  v.  Ontario  M.  Co.,  24  Mont. 
198,  61  Pac.  Rep.  8,  81  Am.  St.  Rep.  421.  See  Duignan  v.  Montana 
Club,  16  Mont.  189,  40  Pac.  Rep.  294;  Mochon  v.  Sullivan,  1  Mont. 
472;  Davis  v.  Alvord,  94  U.  S.  545,  547,  bk.  24  L.  ed.  283. 

New  Mexico.  Hobbs  v.  Spiegelberg,  3  N.  M.  529,  5  Pac.  Rep.  529. 
"To  protect  laborers":  Mountain  Electric  Co.  v.  Miles,  9  N.  M.  512, 
56  Pac.  Rep.  284.  "  We  suggest  that  the  policy  in  favor  of  mechanics 
in  the  United  States  was  conceived  to  stimulate  the  construction  of 
towns  and  cities,  and  that  the  system  has  been  extended,  commensu- 
rately  with  the  growth  of  the  country,  to  promote  its  prosperity  in 
the  development  of  its  mineral  resources.  It  seems  logical  and  fair 
to  believe  that  similar  inducements  would  have  been  extended,  as  far 
as  practicable,  to  agricultural  and  other  employees,  had  it  been  either 
essential  or  contributive  to  the  interests  of  the  public  and  the 
progress  of  the  country":  Boyle  v.  Mountain  Key  M.  Co.,  9  N.  M.  237, 
50  Pac.  Rep.   347. 

Oklahoma.  "Remedial":  See  El  Reno  Electric  Co.  v.  Jennison,  5 
Okla.  763,  50  Pac.  Rep.  144. 

Oregon.  Gordon  v.  Deal,  23  Oreg.  153,  31  Pac.  Rep.  287;  Pilz  v. 
Killingsworth,  20  Oreg.  432;  Kezartee  v.  Marks,  15  Oreg.  529,  534, 
162  Pac.  Rep.   407;  Patterson  v.  Gallagher,   25  Oreg.   227,   35  Pac.   Rep. 


9  SCOPE   AND  CONSTRUCTION   OF  THE  LAW.  §  8 

the  laborer  should  pursue  the  result  of  his  toil/^  in  order  to 
secure  his  just  compensation ;  ^^  and  because  the  building  is 
the  result  of  such  labor  done  and  material  furnished,  that 
it  is  not  just  that  the  owner  should  succeed  to  that  labor  and 
material  without  compensating  the  persons  furnishing  such 
labor  or  material.^^ 

§  8.  A  favored  lien.  For  the  reasons  given  in  the  fore- 
going section,  a  mechanic's  lien  is  a  favored  lien ;  -°  and  for 
the  same  reasons  the  substitute  for  the  remedy  by  lien,  in 
the  nature  of  a  garnishment  by  notice,  given  to  the  owner 
under  the  Code  of  Civil  Procedure,-^  is  a  remedy  which 
should  be  regarded  with  favor  by  the  court.--  Some  courts, 
while  intimating,  at  times,  their  disposition  to  criticize  the 

454,  42  Am.  St.  Rep.  794.  See  Ainslie  v.  Kohn,  16  Oreg.  363,  370,  19  Pac. 
Rep.  97. 

Utah.  Salt  Lake  Litho.  Co.  v.  Ibex  Mine  &  S.  Co.,  15  Utah  445,  49 
Pac.  Rep.  832;  Eccles  L.  Co.  v.  Martin,  87  Pac.  Rep.  713,  716.  See 
Garland  v.  Irrigation  Co.,  9  Utah  350,  362.  34  Pac.  Rep.  368. 

Washington.  '•To  secure  the  pay  of  the  laborer":  Eisenbeis  v. 
Wakeman,  3  Wash.  534,  538,  28  Pac.  Rep.  923. 

"  Humboldt  L.  M.  Co.  v.  Crisp,  146  Cal.  686,  687,  688,  2  Am.  &  Eng. 
Ann.  Cas.  811,  81  Pac.  Rep.  30,  106  Am.  St.  Rep.  75. 

"  Brill  V.  De  Turk,   130  Cal.   241,   242,   62  Pac.  Rep.   462. 

Alaska.  To  do  substantial  justice  to  all  parties:  Russell  v.  Hay- 
ner,   130  Fed  Rep.  90,  64  C.  C.  A.  424,  2  Alas.   702,  703   (Dig.). 

Colorado.  Lindemann  v.  Belaen  Consol.  M.  &  M.  Co.,  16  Colo.  App. 
342,  65  Pac.  Rep.  403;  Chicago  L.  Co.  v.  Newcomb,  19  Colo.  App.  265,  74 
Pac.  Rep.   786. 

Hawaii.     Allen  v.  Redward,   10  Hawn.   151,  159. 

Montana.  A.  M.  Holter  Hardware  Co.  v.  Ontario  Min.  Co.,  24  Mont. 
198,  61  Pac.  Rep.  8,  81  Am.  St.  Rep.  421. 

New  Mexico.  Genest  v.  Las  Vegas  Masonic  Bldg.  Assoc,  11  N.  M. 
251,  67  Pac.  Rep.  743;  Boyle  v.  Mountain  Key  M.  Co.,  9  N.  M.  237,  50 
Pac.  Rep.   347,   352. 

"  Humboldt  L.  M.  Co.  v.  Crisp,  146  Cal.  686,  2  Am.  &  Eng.  Ann.  Cas. 
811,  81  Pac.  Rep.  30,  106  Am.  St.  Rep.  75;  Avery  v.  Clarke,  87  Cal.  628, 
25  Pac.  Rep.  919,  22  Am.  St.  Rep.  272.  See  Davies-Henderson  L.  Co.  v. 
Gottschalk,  81  Cal.  641,  22  Pac.  Rep.  860.  But  see  Dore  v.  Sellers. 
27  Cal.  588,  594   (1862). 

=»  McCrea  v.  Craig,  23  Cal.  523. 

See   note   4   Am.   &   Eng.   Ann.   Cas.    620. 

Montana.  It  is  remedial;  Richards  v.  Lewisohn,  19  Mont.  128, 
47  Rep.  Pac.  645;  Mochon  v.  Sullivan,  1  Mont.  470,  472;  and  rests  upon 
the  broad  foundation  of  natural  equity  and  commercial  necessity: 
Mochon   V.   Sullivan,   1   Mont.   472. 

"  Kerr's  Cyo.  Code  Civ.  Proc,   §  1184. 

--  Bates  V.  County  of  Santa  Barbara,  90  Cal.  543,  547,  27  Pac.  Rep. 
438;  Board  of  Education  v.  Blake   (Cal.),   38  Pac.  Rep.  536. 

See  "  Liability  as  Fixed  by  Notice,"  §§  547  et  seq.,  post. 


§§  9,  10  MECHANICS'   LIENS.  10 

policy  of  the  legislature  in  coufiniiig  such  liens  to  those 
enumerated  in  the  statute,  have,  nevertheless,  endeavored 
to  follow  out  the  spirit  of  the  law  as  thus  indicated.^^  It 
is  to  be  noted  that  the  tendency  of  legislation  in  recent  years 
has  been  to  extend,  rather  than  to  restrict,  the  classes  of 
liens  similar  to  those  under  consideration. 

§  9.     General  nature  of  the  lien.-*     Plan  of  discussion. 

In  the  sections  immediately  following  will  be  considered 
briefly:  I.  The  general  classification  of  liens  of  this  char- 
acter; II.  The  kinship  between  the  statutes  of  the  various 
jurisdictions  herein  treated;  and  III.  The  general  peculiari- 
ties of  such  liens.  The  development  of  each  of  these  heads 
will  be  left  for  subsequent  sections. 

§  10.     I.    General  classification  of  liens  of  this  character. 

An  important  matter  in  construing  the  mechanic's-lien 
statute  of  a  state,  as  well  as  in  determining  the  weight  to 
be  given  to  a  decision  of  a  sister  state,  is  that  of  ascertaining 
the  general  nature  of  the  lien  provided  by  statute.  These 
liens  differ  materially,  and  a  number  of  classifications  appeal 
to  the  investigator ;   for  they  may  be  classified,  as  follows : 

1.  As  to  the  contractual  relation  existing  between  the 
owner  and  the  original  contractor;  whether  (a)  upon  the 
object  or  thing,  without  reference  to  such  contractual  rela- 
tion, which  is  known  as  the  "  direct  lien,"  or  Pennsylvania 
system;  or  (b)  subordinate  to  such  contractual  relation, 
which  is  known  as  the  "  indirect  lien,"  or  New  York 
system.-^ 

2.  As  to  the  object  or  thing  to  which  the  lien  attaches: 
(a)  on  the  land;  (b)  on  the  building  or  structure;  or  (c)  on 
the  fund. 

Each  of  these   classifications  may  be  further  subdivided 

=2  Colorado.  See  Burleigh  Bldg-.  Co.  v.  Merchant  B.  &  B.  Co.,  13 
Colo.  App.  455,  460,  59  Pac.  Rep.  83,   84. 

New  Mexico.  See  Boyle  v.  Mountain  Key  M.  Co.,  •  9  N.  M.  237,  50 
Pac.  Rep.  347,   352. 

-*  See  "Nature  of  Action  to  Foreclose  Lien,"  S  640.  post.  As  to 
general  nature  and  scope -of  right,  see  note  13  L.  R.  A.  701. 

="  New  York  lien:  See  note  13  L.  R.  A.  ZOl. 


11  SCOPE   AND  CONSTRUCTION  OF  THE  LAW.      §§  11,  12 

by  the  consideration  of  the  question  whether  the  lien  is  lim- 
ited in  amount  (1)  to  the  "  agreed  price,"  or  (2)  to  the 
"  value  "  of  the  work  or  materials. 

§  11.  Another  classification.  Another  classification  has 
been  suggested,  as  follows:  1.  In  a  few  states,  subclaimants 
are  not  given  a  lien  upon  the  property,  but  only  on  the  debt 
payable  by  the  owner  to  the  contractor.  2.  In  many  states 
a  direct  lien  is  given  on  the  property,  but  with  the  express 
limitation  to  the  amount  of  the  original  contract  price. 
Under  these  two  classes  of  statutes,  the  right  of  a  sub- 
claimant  has  generally  been  held  to  be  controlled  by  the 
state  of  the  account  between  the  owner  and  the  contractor, 
the  subclaimants  being  merely  subrogated  to  the  rights  of 
the  contractor.  3.  In  other  states,  a  direct  lien  is  given 
upon  the  property,  either  with  qualifying  or  limiting 
expressions  as  to  amount,  as  in  Taany  states,  or  with  expres- 
sions clearly  showing  that  there  is  no  limit,  as  in  a  few 
states.^®  In  such  states,  the  courts  have  generally  held  that 
the  material-man  may  have  a  lien  for  the  reasonable  value 
of  the  materials  furnished  by  him,  even  though  in  excess 
of  the  amount  payable  to  the  original  contractor  under  the 
original  contract.^^ 

§  12.  The  classification  adopted  herein.  For  the  pur- 
poses of  the  discussion,  however,  the  first  of  the  above  clas- 
sifications will  be  used  in  this  work,  as  being  more  logical 
and  exhaustive,  as  well  as  being  more  in  consonance  with 
the  general  plan  adopted. 

-^  See  "Lien  as  Limited  by  Contract,"  §§  459  et  seq.,  post. 

-'  Hawaii.  Tlie  Hawaiian  statute  is  of  tiie  nature  last  stated  in 
the  text,  as  it  gives  a  direct  lien  upon  the  property  to  a  subcon- 
tractor, witliout  limit  with  reference  to  the  contract  price.  Section  1 
of  the  statute  gives  a  lien  "  to  any  person  furnishing  material," 
and  makes  no  distinction  between  the  contractor  and  subcontractors. 
The  lien  is  "for  the  price  agreed  to  be  paid."  This  may  mean  the 
price  agreed  either  between  the  owner  and  contractor,  or  between 
the  contractor  and  material-man.  It  would  naturally  mean  the  price 
agreed  to,  on  one  side  at  least,  by  "  the  person  furnishing  materials," 
and  that  would  be  the  subcontractor,  if  the  materials  were  furnished 
by  him:  Allen  v.  Redward,  10  Hawn.   151,  154. 


§§  13,  14  MECHANICS'   LIENS.  12 

§  13.  Same.  Contractual  relation  between  owner  and 
original  contractor.  The  present  California  statute  is  pecu- 
liarly complicated,  and  much  confusion  and  misunderstand- 
ing concerning  its  nature  has  arisen,  not  only  in  the  decis- 
ions of  the  courts  of  other  states,  but  also  in  those  of  Cali- 
fornia. This  results,  in  part,  from  the  fact  that  the  statute 
combines  within  itself  a  number  of  the  systems  above  out- 
lined ;  and  while  some  courts,  on  the  one  hand,  declare  that 
it  creates  a  "  direct  lien,"  or  belongs  to  the  Pennsylvania 
system,^^  others  declare  with  equal  force  that  it  creates  an 
"  indirect  lien,"  under  the  so-called  New  York  sj^stem.^^  It 
is  thought  that  there  is  truth  in  both  contentions,  so  far  as 
this  particular  classification  goes.  As  tending  in  a  measure 
to  clear  up  this  involved  subject,  the  following  tentative  sug- 
gestion is  made :  The  California  statute,  in  a  general  way,  so 
far  as  relates  to  this  matter,  has  three  aspects :  It  creates  — 
1.  A  direct  lien;  2.  An  indirect  lien,  upon  the  property;  and 
3.  A  lien  upon  the  fund.^° 

§  14.  Same.  Valid  and  void  contract.  Effect.  Where 
the  original  contract  is  valid,  all  liens  on  the  property  are 
marshaled  under  the  original  contract,  which  feeds  them. 
That  is  the  central  idea  of  the  New  York  system,  or  indirect 
lien.  Where  the  original  contract  is  void  under  certain  cir- 
cumstances, the  liens  upon  the  property  are  direct  and  inde- 
pendent of  any  contract  which  would  otherwise  limit  them. 
This  is  the  underlying  principle  of  the  Pennyslvania  system. 
Bearing  these  basic  distinctions  in  mind,  we  may  the  better 
be  enabled  to  consider  the  various  problems  as  they  arise. ^^ 

2s  See  Humboldt  L.  M.  Co.  v.  Crisp,  146  Cal.  686,  689,  2  Am.  &  Eng. 
Ann.  Cas.  811,  81  Pac.  Rep.  30,  106  Am.  St.  Rep.  75;  Aste  v.  Wilson, 
14  Colo.  App.  323,  59  Pac.  Rep.  846. 

2»  New  York  system:  Dissenting  opinion  of  Ailshie,  J.,  in  Pacific 
States  Sav.  B.  &  L.  Co.  v.  Dubois,  11  Idaho  319,  S3  Pac."  Rep.  513,  517. 

•■"'  This  last  lien,  the  one  upon  the  fund,  has  given  tlie  courts  con- 
siderable difficulty,  and  its  relation  to  the  lien  upon  the  property 
has  not  been  presented  by  the  courts  in  sucli  manner  as  to  avoid 
criticism:  See  "Liability  of  Owner  as  Fixed  by  Notice/'  §§  547  et  seq., 
post. 

31  Colorado.  Intimated,  but  not  decided,  that  the  lien  law  of  1893, 
p.  315,  gave  a  direct  lien  —  discussion  of  direct  and  indirect  lien:  See 
Aste  V.  Wilson,  14  Colo.  App.  323,  59  Pac.  Rep.  846. 


13  SCOPE  AND  CONSTRUCTION    OF  THE   LAW.  §  15 

§  15.  Same.  The  object  or  thing  to  which  the  lien 
attaches.  The  lien  on  the  land  itself  and  on  tlie  strnetnre 
will  be  considered  together  for  convenience.  It  has  been 
held,  under  the  California  statute,  that  the  completed  build- 
ing is  the  principal  thing  upon  which  the  right  to  a  lien  is 
given,  and  the  land  upon  which  it  is  situated  is  an  incident 
to  its  completion.^-  If,  for  instance,  the  building  in  course 
of  erection  should  be  destroyed  by  fire  without  the  fault  of 
the  owner,  it  has  been  held  that  the  lien  has  nothing  upon 
which  it  can  attach;  the  principle  of  the  decision  being  that 
no  benefit  has  been  conferred  upon  the  owner,  and  that  the 
court  cannot  determine  what  amount  of  land  is  necessary 

There  must  be  a  contract  under  which  tlie  work  is  done:  David- 
son V.  Jennings,  27  Colo.  187,  60  Pac.  Rep.  354,  83  Am.  St.  Rep.  49,  48 
L.  R.  A.  340.     See  paragraph  on  Xew  Mexico,  this  note. 

Hatvail.  It  is  not  the  contract  for  erecting-  or  repairing  a  build- 
ing which  creates  the  lien,  but  It  is  the  use  of  the  materials  fur- 
nished, or  the  work  or  labor  performed  by  the  contractor,  whereby 
the  building  becomes  part  of  the  freehold,  that  gives  subclaimant  his 
lien  under  the  statute:  Hackfeld  v.  Hilo  R.  Co.,  14  Hawn.  448,  451. 

Idaho.  In  the  dissenting  opinion  of  Ailshie,  J.,  in  Pacific  States 
S.  L,.  &  B.  Co.  v.  Dubois,  11  Idaho  319,  83  Pac.  Rep.  513,  517,  it  is  said 
that  the  act  of  1893  changed  from  tlie  indirect  system  to  the  direct 
system,   giving  an  absolute   lien   on   the  property. 

New  Mexico.  As  to  the  general  nature  of  the  meclianic's-lien  law 
of  Colorado  (2  Mills's  Ann.  Stats.,  §§2867-2899),  see  Genest  v.  Las 
Vegas  Masonic  B.  Assoc,   11  N.  M.  251,   67  Pac.  Rep.  743,   746. 

Oregon.  The  lien  on  railroads  given  by  Laws  1889,  p.  75,  held  to 
confer  an  indirect  lien:  Coleman  v.  Oregonian  R.  Co.,  25  Oreg.  286, 
35  Pac.  Pep.  656. 

Utali.  A  contract,  express  or  implied,  for  the  improvement  must 
have  been  made  with  the  owner  thereof,  or  his  authorized  agent, 
before  a  claim  of  lien  for  an  improvement  can  be  maintained: 
Eccles  L.  Co.  v.  Martin   (Utah),  87  Pac.  Rep.   713,  715. 

WaNliing'ton.  The  lien  exists  independently  of  any  special  con- 
tract. Where  a  contract  is  entered  into  by  the  parties,  it  is  not  the 
contract  which  creates  the  lien  under  the  statute,  but  it  is  the  use 
of  the  materials  furnished  upon  the  premises.  The  statute  does  not 
give  a  claimant  a  right  to  his  debt,  but  furnishes  a  remedy  for  its 
collection:     Peterson  v.  Dillon,  27  Wash.  78,  67  Pac.  Rep.  397. 

-'■'  Humboldt  L.  M.  Co.  v.  Crisp,  146  Cal.  686,  2  Am.  &  Eng.  Ann. 
Gas.  811,  81  Pac.  Rep.  30,  106  Am.  St.  Rep.  75;  Stimson  M.  Co.  v.  Nolan 
(Cal.  App.,  June  19,  1907),  91  Pac.  Rep.  262;  Linck  v.  Meikeljohn,  2 
Cal.   App.   506,   508,   84   Pac.   Rep.   309. 

See   Kerr's   Cyc.   Code   Civ.   Proc,   §    1185. 

Vitah.  In  this  state,  however,  a  mechanic's  lien  can  only  be 
acquired  on  the  land,  and  the  buildings  or  improvements  are  to  be 
taken  as  appurtenant  merely,  under  Rev.  Stats.  189S.  tit.  xxxix: 
Eccles  L.  Co.  v.  Martin  (Utah),  87  Pac.  Rep.  713,  715,  710. 


§  16  MECHANICS'   LIENS.  14 

for  the   convenient  use   and  occupation   mentioned   in  the 
mechanic's-lien  statute. ^^ 

§  16.  Same.  Lien  on  structure  separate  from  land.  The 
primary  lien  of  contractors,  material-men,  mechanics,  and 
laborers  being  upon  the  competed  building  or  improvement, 
and  on  as  much  of  the  land  "  as  may  be  required  for  the 
convenient  use  and  occupation  thereof,"  ^*  merely  as  an 
incident  of  the  completion  and  use  of  the  building,^^  where 
a  building  is  erected  upon  land  at  the  instance  of  one  who 
falsely  represents  himself  as  the  owner  thereof,  the  lien  for 
work  and  labor  done  and  material  furnished  in  the  erection 
of  such  building  may  be  enforced  against  building  sepa- 
rate and  apart  from  the  land  on  which  it  rests,  notwith- 
standing the  fact  that  the  building,  when  completed,  be- 
comes a  part  of  the  land;  and  the  court,  on  foreclosure  of 
the  mechanic's  lien,  may  decree  that  the  building  be  severed 
from  the  land  and  sold  in  satisfaction  of  the  lien,  in  the 
absence  of  any  showing  by  the  real  owner  that  his  land  will 
be  injured  thereby.^® 

This  subject  will  be  further  considered  under  the  head  of 
"  Object  upon  Which  Labor  must  be  Performed."  ^^ 

To  avail  himself  of  the  benefit  of  the  construction  of  the 
building,  "  he  should  be  required,  in  common  honesty,  to 
pay  the  liens  thereon  occasioned  bj^  its  construction,  created 
in  good  faith,  without  knowledge  that  the  erection  of  the 
building  was  unauthorized  "  by  him.^^ 

3'  Kerr's  Cye.  Code  Civ.  Proe.,  §  1185.  See  Humboldt  L.  M.  Co.  v. 
Crisp,  146  Cal.  686,  2  Am.  &  Eng.  Ann.  Cas.  811,  81  Pac.  Rep.  30,  106 
Am.  St.  Rep.  75.  In  this  case  it  did  not  clearly  appear  whether  the 
lien  was  claimed  by  the  original  contractor  or  subclaimants;  probably 
by  the  latter. 

See  further  authorities  on  question  discussed  in  text,  in  note  2 
Am.   &  Eng.   Ann.   Cas.   811. 

**  See  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1185. 

3=  Humboldt  L,.  M.  Co.  v.  Crisp,  146  Cal.  686,  2  Am.  &  Eng.  Ann. 
Cas.   811,   81   Pac.  Rep.  30,   106  Am.   St.  Rep.   75. 

New  Mexico.  See  Armijo  v.  Mountain  E.  Co.,  11  N.  M.  235,  67 
Pac.  Rep.  726. 

i:tah.     See  Sanford  v.  Kunkel   (Utah),  85  Pac.  Rep.  363,  1012. 

=«  Linck  V.  Meikeljohn,  2  Cal.  App.  506,   508,  84  Pac.  Rep.  309. 

"  §§  166  et  seq.,  post. 

^  Linck  V.  Meikeljohn,  2  Cal.  App.  506,  508,  84  Pac.  Rep.  309. 


15  SCOPE   AND  CONSTRUCTION   OF   THE   LAW.       ^§  17-19 

§  17.  Same.  Lien  on  the  fund.  The  right  to  enforce  a 
mechanic's  lien  on  the  fund,  in  the  absence  of  a  lien  on  the 
property,  has  been  the  subject  of  recent  discussion  by  the 
courts  of  California,  and  in  a  late  decision  of  the  appellate 
court  there  has  been  shown  a  lack  of  appreciation  of  the  true 
significance  of  this  lien  and  its  relation  to  the  lien  upon  the 
property.  This  subject  will  be  hereafter  fully  considered 
under  the  head  of  "  Liability  of  Owner  as  Fixed  by 
Notice."  3» 

§  18.  II.  The  kinship  between  statutes  of  the  various 
states.  In  this  treatise  no  attempt  will  be  made  to  compare 
the  various  statutes  as  a  whole.  The  author  will  confine  his 
efforts  merely  to  setting  forth  what  has  been  said  by  the 
courts  as  to  their  relationship.  Similar  sections  of  the  dif- 
ferent acts  will  be  found  in  the  "  Table  of  Correlated  Sec- 
tions," in  this  volume.  The  supreme  court  of  California 
has  said  that  the  provisions  of  the  code  *°  regulating  this 
subject  agree  more  nearly  with  the  Pennsylvania  and  Wis- 
consin statutes  than  with  the  statutes  of  any  other  states.*^ 

§  19.     III.     The  general  peculiarities  of  mechanics'  liens. 

The  mechanic's  lien  is  purely  a  creature  of  statute,*-   and 

3»  §§547  et  seq.,  post.  See  also  "Contract,"  §§193-228,  post, -and 
"Extent  of  Lien  as  Limited  by  Contract,"  §§  459  et  seq.,  post. 

«   Kerr's  Cyc.  Code  Civ.  Proc.  §§  1183-120.3a. 

"  Humboldt  L.  M.  Co.  v.  Crisp,  146  Cal.  686,  689,  2  Am.  &  Eng. 
Ann.  Cas.   811,   81  Pac.  Rep.  30,   106  Am.  St.  Rep.  75. 

As  to  the  kin.ship  between  the  California,  Washington,  Nevada,  and 
Idaho  statutes,  see  Pacific  States  S.  L.  &  B.  Co.  v.  Dubois,  11  Idaho  319, 
83  Pac.  Rep.  513. 

As  to  the  relation  between  the  early  California  decisions  and  the 
Texas,  Nevada,  Washington,  and  New  Mexico  systems,  see  Allen  v. 
Redward,  10  Hawn.  151,  157. 

New  Mexico.  2  Mills's  Ann.  Stats.  Colo..  §§  2867-2899,  declared 
very  dissimilar  to  those  of  New  Mexico:  See  Genest  v.  Las  Vegas 
Masonic  Bldg.  Assoc,  11  N.  M.  251,  67  Pac.  Rep.  743,   746. 

"  San  Francisco  Pav.  Co.  v.  Fairfield,  134  Cal.  222,  224,  66  Pac. 
Rep.  255;  Reese  v.  Bald  Mountain  Consol.  G.  M.  Co.,  133  Cal.  285,  290, 
65  Pac.  Rep.  578;  Dunlop  v.  Kennedy  (Cal.  Sup.),  34  Pac.  Rep.  92,  95; 
Valley  L.  Co.  v.  Wright,  2  Cal.  App.  288,  291,  84  Pac.  Rep.  58;  Hughes 
Bros.  V.  Hoover,  3  Cal.  App.  145,  84  Pac.  Rep.  681;  WHiitney  v.  Higgins, 
10  Cal.  547,  551,  70  Am.  Dec.  748;  Ellison  v.  .lackson  W.  Co.,  12  Cal. 
542,  554;  McNeil  v.  Borland,  23  Cal.  144,  148;  Spinney  v.  Griffith,  98  Cal. 
149,  151,  32  Pac.  Rep.  974;  Morris  v.  Wilson.  97  Cal.  644.  646,  3:?  Pac. 
Rep.   801;   McLaughlin  v.  Perkins,   102   Cal.   502,   506,   36   Pac.   Rep.   839; 


§  19  MECHANICS'   LIENS.  16 

the  statute  creating  it  must  be  looked  to,  both  for  the  right 
to   such  lien   and  the   mode   by  which   it   is  secured  *^   or 

Corbett  v.  Chambers,  109  Cal.  178,  180,  41  Pac.  Rep.  873;  Davis  v. 
MacDonough,    109  Cal.   547,   550,   42  Pac.  Rep.   450. 

See  §  1,  ante. 

Ah  to  lien,  not  a  mechanic's  lien,  of  mining  partner  for  work  on 
mine,  see  Frowenfeld  v.   Hastings,   134   Cal.   128,   66  Pac.  Rep.   178. 

Ala-slva.  Russell  v.  Hayner,  130  Fed  Rep.  90,  64  C.  C.  A.  424,  2 
Alas.    702,    703    (Dig.);   Jorgensen   v.   Sheldon,    2   Alas.    607. 

Colorado.  Antlers  Park  Regent  M.  Co.  v.  Cunningham,  29  Colo. 
284,  68  Pac.  Rep.  226;  Davidson  v.  Jennings,  27  Colo.  187,  60  Pac.  Rep. 
354,  83  Am.  St.  Rep.  49,  48  L.  R.  A.  340;  Aste  v.  Wilson,  14  Colo.  App. 
323,  59  Pac.  Rep.  846;  Michael  v.  Reeves,  14  Colo.  App.  460,  60  Pac. 
Rep.  577;  Lindemann  v.  Belden  Cons.  M.  &  M.  Co.,  16  Colo.  App.  342. 
65  Pac.  Rep.  403;  Joralmon  v.  McPhee,  31  Colo.  26,  71  Pac.  Rep.  419, 
423;  Barnard  v.  McKenzie,  4  Colo.  251;  Greeley  S.  L.  &  P.  R.  Co.  v. 
Harris,  12  Colo.  226,  20  Pac.  Rep.  764;  Cary  Hardware  Co.  v.  Mc- 
Carty,  10  Colo.  App.  200,  50  Pac.  Rep.  745;  Cornell  v.  Conine-Eaton 
L.  Co.,  9  Colo.  App.  225,  47  Pac.  Rep.  912;  Sayre-Newton  L.  Co.  v. 
Union  Bank,  6  Colo.  App.  541,  41  Pac.  Rep.  844;  Hanna  v.  Colorado 
Sav.  Bank,  4  Colo.  App.  28,  31  Pac.  Rep.  1020;  Pitschke  v.  Pope,  20 
Colo.  App.  328,  78  Pac.  Rep.  1077;  Chicago  L.  Co.  v.  Newcomb,  19  Colo. 
App.  265,  74  Pac.  Rep.  786,  788. 

Cannot  be  extended  or  restrained  by  the  acts  of  the  parties: 
Lindemann  v.  Belden  Consol.  M.  &  M.  Co.,  16  Colo.  App.  342,  65  Pac. 
Rep.  403,  citing  Florman  v.  School  Dist.  No.  11,  El  Paso  Co.,  6  Colo. 
319,  40  Pac.  Rep.  469;  Johnston  v.  Bennett,  6  Colo.  App.  362,  40  Pac. 
Rep.   847. 

Idaho.  Bradbury  v.  Idaho  &  O.  Land  Imp.  Co.,  2  Idaho  239,  10 
Pac.   Rep.    620. 

Montana.  Richards  v.  Lewisohn,  19  Mont.  128,  47  Pac.  Rep.  645; 
Alvord  V.  Hendrie,  2  Mont.  115;  Mochon  v.  Sullivan,  1  Mont.  470,  472. 

Nevada.     Malter  v.  Falcon  M.  Co..  18  Nev.  209,  2  Pac.  Rep.  50. 

New  Mexico.  Ford  v.  Springer  Land  Assoc,  8  N.  M.  57,  41  Pac. 
Rep.' 541;  Finane  v.  Hotel  Co..  3  N.  M.  256,  5  Pac.  Rep.  725;  Genest  v. 
Las  Vegas  Masonic  Bldg.  Assoc,  11   N.  M.  251,  67  Pac.  Rep.  743. 

Oregon.  Willamette  S.  M.  L.  &  Mfg.  Co.  v.  Shea,  24  Greg.  40,  52, 
32  Pac.  Rep.  759;  Nicolai  v.  Van  Fridagh,  23  Greg.  149,  31  Pac.  Rep. 
288;  Gordon  v.  Deal,  23  Greg.  153,  31  Pac.  Rep.  287;  Pilz  v.  Killings- 
worth,  20  Greg.  432,  26  Pac.  Rep.  305;  Allen  v.  Rowe,  19  Greg.  188.  23 
Pac.  Rep.  901. 

Utah.  Morrison,  Merrill  &  Co.  v.  Willard,  17  Utah  306,  53  Pac. 
Rep.  832,  70  Am.  St.  Rep.  784;  Eccles  L.  Co.  v.  Martin  (Utah),  87  Pac. 
Rep.   713. 

\V'a.>4hiugton.  Marks  v.  Pence,  31  Wash.  426,  71  Pac.  Rep.  1096; 
Peterson  v.  Dillon,  27  Wash.  78,  67  Pac.  Rep.  397;  McHugh  v.  Slack, 
11  Wash.  370,  372,  39  Pac.  Rep.  674;  United  States  Sav.  L.  &  B.  Co.  v. 
Jones,  9  Wash.  434,  441,  37  Pac.  Rep.  666;  Johnston  v,  Harrington,  5 
Wash.  73,  80,  31  Pac.  Rep.  316.  See  dissenting  opinion,  Tacoma  L.  & 
Mfg.  Co.  V.  Wolff,   7  Wash.  478.  35  Pac.  Rep.   115,  755. 

"  Spinney  v.  Griffith,  98  Cal.  149,  151,  32  Pac.  Rep.  974;  Giant 
Powder  Co.  v.  San  Diego  F.  Co.,  97  Cal.  263,  32  Pac.  Rep.  172;  Winrod 
V.   Wolters.    141    Cal.    399,    402,    74   Pac.    Rep.    1037. 

A  void  lien  cannot  be  converted  into  a  valid  one  by  consent:  San 
Francisco  P.  Co.  v.  Fairfield,   134  Cal.  220,  224.  66  Pac.  Rep.  255. 

Washington.  See  United  States  Sav.  L.  &  B.  Co.  v.  Jones,  9  Wash. 
434.  441,  37  Pac.  Rep.  674;  Johnston  v.  Harrington,  5  Wash.  73,  80, 
31   Pac.  Rep.   316. 


17  SCOPE   AND  CONSTRUCTION   OP  THE  LAW.  §  20 

enforced.**  A  person,  to  avail  himself  of  the  statute,  must 
comply  with  its  terms ;  *^  for,  generally,  the  right  to  the  lien 
does  not,  of  itself,  create  the  lien,**^  and  before  the  claim  of 
lien  is  filed  the  lien  is  inchoate ;  *^  but  the  same  rule  which 
makes  it  essential  that  all  statutory  requirements  be  com- 
plied with  in  order  to  perfect  the  lien  renders  it  unneces- 
sary to  take  any  other  step  than  is  so  required.** 

§  20.  Relation  of  lien  to  the  debt.  The  lien  does  not 
destroy  any  contractual  relation  or  indebtedness  that  might 
otherwise  arise,  and  the  debt  which  would  exist  if  there 
were  no  mechanic's  lien  may  be  enforced,  like  any  other 
debt,  by  an  action  in  the  proper  court.*^    The  lien  is  a  mere 

"  Reese  v.  Bald  Mountain  Consol.  G.  Min.  Co.,  133  Cal.  285,  65  Pac. 
Rep.   578;   Davis  v.   MacDonougli,   109  Cal.   547,   550,   42  Pac.   Rep.   450. 

*'  San  Francisco  Pav.  Co.  v.  Fairfield,  134  Cal.  222,  224,  66  Pac.  Rep. 
255;  Morris  v.  Wilson,  97  Cal.  644,  646,  32  Pac.  Rep.  801;  Corbett  v. 
Chambers,  109  Cal.  178,  180,  41  Pac.  Rep.  873;  Keener  v.  Eagle  Lake 
L.  &  I.  Co.,  110  Cal.  627,  631,  43  Pac.  Rep.  14  (under  Stats.  1891,  p.  195  — 
on  property  of  corporations);  Kuschel  v.  Hunter  (Cal.,  Sept.  14,  189^), 
50  Pac.  Rep.  397. 

See   "Construction  of  Statute,"  §§24-27,  post. 

Alaska.     Russell   v.    Hayner.    130   Fed.   Rep.    90. 

Colorado.  Greeley  S.  L.  &  P.  R.  Co.  v.  Harris,  12  Colo.  226,  20  Pac. 
Rep.   764;  Michael  v.  Reeves,   14  Colo.  App.   460,   60  Pac.  Rep.   577. 

rtah.      Eccles  L.  Co.  v.  Martin  (Utah),  87  Pac.  Rep.  713. 

^^  San  Francisco  Pav.  Co.  v.  Fairfield,  134  Cal.  222,  224,  66  Pac.  Rep. 
255. 

See  "Claim  of  Lien,"  §  362,  post. 

"  Provident  Mut.  B.  &  L.  Assoc,  v.  Shaffer,  2  Cal.  App.  216,  83  Pac. 
Rep.  274;  Hughes  Bros.  v.  Hoover,  3  Cal.  App.  145,  84  Pac.  Rep.  681, 
683. 

See  •'  Claim,"  §  362,  post. 

Colorado.  Sprague  Inv.  Co.  v.  Mouat  L.  &  I.  Co.,  14  Colo.  App.  107, 
60  Pac.  Rep.  179,  182. 

Hawaii.     Lucas  v.   Redward,    9   Hawn.    23,    25. 

Montana.     See  McGlauflin  v.  Wormser,  28  Mont.  177,  72  Pac.  Rep.  428. 

Oregon.  But,  under  the  law  relating  to  the  liens  on  railroads 
(Laws  1889,  p.  75),  the  lien  is  created  by  serving'  the  notice  pre- 
scribed by  the  statute:  Coleman  v.  Oregonian  R.  Co.,  25  Oreg.  286, 
35  Pac.  Rep.   656. 

Utah.     Elwell  V.  Morrow,    28  Utah   278,   78  Pac.  Rep.   605. 

•■«  Corbett  v.  Chambers,  109  Cal.  178,  180,  41  Pac.  Rep.  873. 

"  Kerr's  Cyc.  Code  Civ.  Proe.,  §  1197,  and  note;  Brock  v.  Bruce, 
6  Cal.  279,  280;  McNeil  v.  Borland,  23  Cal.  144,  149;  Hunt  v.  Darling, 
26  R.  I.  480,   3  Am.  &  Eng.  Ann.  Cas.   1098,   59  Atl.   Rep.   398. 

See  authorities  collected  in  note  3  Am.  &  Eng.  Ann.  Cas.  1100. 

See  also  "Obligation  of  Owner,"  §§523  et  seq.,  post;  and  "Cumula- 
tive Remedies,"  §§  638  et  seq.,  post. 

Debt  und  lien  separated.  It  was  held  in  McNeil  v.  Borland.  23  Cal. 
144,  149,  under  the  act  of  1861  giving  liens  to  mechanics  and  others, 
Mech.   Liens  —  2 


§  21  MECHANICS'   LIEXS.  18 

incident  to  the  debt  or  claim/"'"  follows  it,  and  may  be 
enforced  in  the  same  action ;  ^^  and  no  lieu  can  exist  without 
an  indebtedness  due  to  the  claimant  from  some  person. ^- 

§  21.    Mechanic's  lien  and  mortgage  compared.     It  has 

been  said  that  a  mechanic's  lien  is  in  the  nature  of  a  mort- 
gage and  is  a  charge  upon  the  land ;  ^^  but  a  mechanic's  lien 
does  not  closely  resemble,  in  these  respects,  a  mortgage,  as 

that  the  debt  and  the  lien  were  expressly  separated,  owing  to  the 
peculiar  character  of  the  procedure  provided  by  the  act,  which 
was  not  an  "  action,"  but  a  "  special  case,"  in  substantial  identity 
with  proceedings  in  Insolvency,  so  far  as  the  presentation  of  claims 
is  concerned. 

5»  Ritter  V.  Stevenson,  7  Cal.  388,  389;  Duncan  v.  Hawn,  104  Cal. 
10,  12,  37  Pac.  Rep.  626. 

See  Kerr's  Cyc.  Civ.  Code,  §  2909,  and  note. 

Montana.  Missoula  M.  Co.  v.  O'Donnell,  24  Mont.  65,  60  Pac.  Rep. 
594,   991. 

Nevada.     Hampton  v.  Truckee  C.  Co.,  19  Fed.  Rep.  1,  4   (1875). 

Utah.  Morrison  v.  Willard,  17  Utah  306,  53  Pac.  Rep.  832.  70  Am. 
St.  Rep.   784. 

^1  Brock  V.  Bruce,  5  Cal.  279,  280;  McNeil  v.  Borland,  23  Cal.  144,  149. 

See  "  Cumulative  Remedies,"  §§  638  et  seq.,  post. 

Colorado.     Bradbury  v.  Butler,   1  Colo.  App.  430,  29  Pac.  Rep.  463. 

Nevada.     See  Skyrme  v.  Occidental  M.  &  M.  Co.,  8  Nev.  219,  231. 

Utalu  See  Morrison  v.  Willard,  17  Utah  306,  53  Pac.  Rep.  832,  70 
Am.  St.  Rep.  784. 

52  See  Shuffleton  v.  Hill,  62  Cal.  483,  484,  6  West  Coast  Rep.  436; 
Davies-Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641,  647,  22  Pac.  Rep. 
860. 

Hawaii.     But  see  Hackfeld  v.  Hilo  R.  Co.,  14  Hawn.  448,  451. 

Montana.  Missoula  M.  Co.  v.  O'Donnell,  24  Mont.  65,  60  Pac.  Rep. 
594,  991;  Wagner  v.  St.  Peter's  Hospital,  32  Mont.  206,  79  Pac.  Rep. 
1054,    1055,    1056. 

Washington.  See  Peterson  v.  Dillon,  27  Wash.  78,  67  Pac.  Rep. 
397. 

Intention  to  enforce  a  lien  need  not  be  present  at  the  time  of  fur- 
nishing the  materials:  Knudson- Jacob  Co.  v.  Brandt  (Wash.),  87 
Pac.  Rep.  43. 

'^  Ritter  v.  Stevenson,  7  Cal.  388,  389;  Brock  v.  Bruce,  5  Cal.  279, 
280;  Curnow  v.  Happy  Valley  etc.  Co.,  68  Cal.  262,  264,  9  Pac.  Rep. 
149.  See  Duncan  v.  Hawn,  104  Cal.  10,  15,  37  Pac."  Rep.  626;  McNeil  v. 
Borland,  23  Cal.  144,  149.  The  cases  of  Ritter  v.  Stevenson  and  Dun- 
can V.  Hawn,  supra,  had  reference  more  particularly  to  its  assign- 
ment and  the  statute  of  frauds,  rather  than  to  its  definition  or  char- 
acteristic   features. 

Colorado.  It  is  "equitable  in  purpose":  Cannon  v.  W^illiams,  14 
Colo.  21,  23  Pac.  Rep.  456;  Bradbury  v.  Butler,  1  Colo.  App.  430,  29 
Pac.  Rep.  463. 

Montana.  Possession  not  necessary:  Mochon  v.  Sullivan.  1  Mont. 
472. 

Nevada.  Rosina  v.  Trowbridge,  20  Nev.  105,  112,  17  Pac.  Rep.  751. 
See  Skyrme  v.  Occidental  M.  &  M.  Co.,  8  Nev.  231. 


10  SCOPE   AND  CONSTRUCTION  OF   THE   LAW.  §  22 

defined  by  the  Civil  Code,^^  except,  perhaps,  in  the  ease  of 
an  original  contractor,  whose  contract,  with  the  implied 
consent  of  the  owner,  has  attached  to  it,  as  security,  the 
lien  which  the  statute  affords;  and  even  if  the  owner  were 
to  give  a  laborer  or  material-man  a  mortgage  upon  his  prop- 
erty to  secure  him  for  labor  done  or  materials  furnished 
for  such  propertj^,  it  could  not  be  considered  a  mechanic's 
lien  within  the  meaning  of  the  Code  of  Civil  Procedure ;  "^ 
nor  would  an  agreement  by  the  owner  of  a  building  to  pay 
a  present,  existing  indebtedness  be  a  sufficient  basis  upon 
which  to  charge  a  mechanic's  lien  upon  a  building;  nor 
would  the  assumption  of  a  debt,  nor  an  agreement  to  pay  a 
debt,  by  an  owner,  in  any  case,  carry  or  create  a  right  to  a 
mechanic's  lien  proprio  vigore.^*^ 

§  22.  Nature  of  action  to  foreclose  lien.  The  action  to 
foreclose  the  lien  is  of  an  equitable  nature,^'  and  is  also  in 
the  nature  of  a  proceeding  in  rem.^^  The  proceeding  to 
reach  funds  in  the  hands  of  the  owner,  under  the  provisions 
of  the  code,^''  is  also  of  an  equitable  nature."" 

IVew  Mexico.  See  Genest  v.  Las  Vegas  Masonic  B.  Assoc,  11  N.  M. 
251,  67  Pac.  Rep.   743. 

Utah.  See  bait  Lake  Litho.  Co.  v.  Ibex  M.  &  S.  Co.,  15  Utah  445, 
49  Pac.  Rep.  832. 

5^   Kerr's  Cyc.   Civ.   Code,   §  2920. 

^=  Kerr's  Cyc.  Code  Civ.  Proc,  pt.  iii,  tit.  iv,  oil.  ii,   SS  1183-1203a. 

Colorado.  See  Johnston  v.  Bennett,  6  Colo.  App.  362,  40  Pac.  Rep. 
847. 

Montana.  See  Bonner  v.  Minnier,  13  Mont.  269,  34  Pac.  Rep.  30, 
40  Am.  St.  Rep.  441   (dissenting  opinion). 

■'«  Gibson  v.  Wheeler,  110  Cal.  243,  245,  42  Pac.  Rep.  810. 

Ala.><ka.  Nor  would  the  fact  that  a  building  permitted  by  the 
owner  to  become  a  part  of  another  structure  on  another's  land  form 
the  basis  of  any  equitable  lien:  Chambers  v.  Hannum,  1  Alas.  468. 

VVasliington.  See  Fairhaven  L.  Co.  v.  Jordan,  5  Wash.  729,  736, 
32  Pac.  Rep.  729. 

"  Curnow  v.  Happy  Valley  etc.  Co.,  68  Cal.  262,  9  Pac.  Rep.  149; 
Dunlop  V.  Kennedy  (Cal.  Sup.),  34  Pac.  Rep.  92,  95;  Weldon  v.  Superior 
Court,  138  Cal.  427,  429,  71  Pac.  Rep.  502;  and  see  Brock  v.  Bruce, 
6  Cal.   279,   280. 

Colorado.     Joralmon  v.   McPhee,   31   Colo.    26,   71   Pac.   Rep.   419,   423. 

'-^  Van  Winkle  v.  Stow,  23  Cal.  458;  Booth  v.  Pendola,  88  Cal.  36,  44, 
23  Pac.  Rep.  200,  25  Id.  1101. 

See   §§  638   et  seq.,   post. 

Kew  Mexico.  Genest  v.  Las  Vegas  Masonic  Bldg.  Assoc,  11  N.  M. 
251,   67   Pac.   Rep.    743. 

"»   Kerr'!*  Cyc.   Code   Civ.  Proc,   §  1184. 

«»  See  Weldon  v.  Superior  Court,   138  Cal.  247,   249,   71  Pac.  Rep.  502. 


§§  23,  24  MECHANICS'   LIENS.  20 

§  23.  Nature  and  scope  of  right  conferred.  It  being 
necessary  to  look  to  the  statute  to  ascertain  the  nature  and 
scope  of  the  right  conferred  by  the  mechanic's-lien  law,  it 
is  found  that  the  mere  right  of  laborers  and  material-men 
to  assert  or  create  a  lien  under  the  California  code,  unlike 
that  under  the  statutes  of  other  states,  was  intended  to 
be  personal,  and  cannot  be  assigned.*^^ 

§  24.  Construction  of  mechanic's-lien  statutes.  Scope  of 
discussion.  In  this  connection  will  be  considered  only  the 
general  rules  applicable  to  the  construction  of  statutes  relat- 
ing to  mechanics'  liens  and  building  contracts,  leaving  to 
the  proper  sections  specific  cases  of  construction. "- 

"  Mills  V.  La  Verne  L.  Co.,  97  Cal.  254,  256,  32  Pac.  Rep.  169,  33 
Am.  St.  Rep.  168;  McCrea  v.  Johnson,  104  Cal.  224,  225,  37  Pac.  Rep. 
902.  The  decisions  in  these  cases  went  upon  the  ground  that  §§  1183 
and  1187  of  the  Code  of  Civil  Procedure  showed  an  intention  that 
the  provisions  of  the  law  should  be  applicable  to  original  claimants 
only,  and  that  the  statute  nowhere  confers  such  a  right  upon  an 
assignee:  Rauer  v.  Fay,  110  Cal.  361,  42  Pac.  Rep.  902;  Rauer  v.  Welsh 
(Cal.  Sup.,  Dec.  10,  1895),  42  Pac.  Rep.  904.  In  Ward  v.  Crane,  118 
Cal.  676,  677,  50  Pac.  Rep.  839,  claimant's  administrator  obtained 
judgment  foreclosing  the  lien.  The  case  of  Mills  v.  La  Verne,  supra, 
was  distinguished  in  Duncan  v.  Hawn,  104  Cal.  10,  12,  37  Pac.  Rep.  626 
(a  suit  to  enforce  a  laborer's  lien  for  work  done  upon  a  threshing- 
machine,  under  Stats.  1885,  p.  109),  by  holding  that  when  the  statute 
requires  no  step  to  perfect  the  lien,  but  gives  such  lien  ipso  facto,  or 
when  the  lien  has  been  perfected,  the  lien  is  not,  or  ceases  to  be, 
personal,  and  may  be  assigned.  But  if,  before  the  lien  is  perfected,  it 
is  assigned  to  a  third  party  as  security  merely,  and  then  reassigned 
to  the  claimant,  who  then  filed  the  claim  of  lien,  and  transferred  the 
same  to  plaintiff,  the  title  of  plaintiif,  and  his  right  to  enforce  the  lien, 
is  established:  Macomber  v.  Bigelow,  126  Cal.  9,  13,  58  Pac.  Rep.  312. 

As  to  assigrnment  of  right  created  by  notice,  see  §  594,  post;  see 
also  "Assignees,"  §§  588  et  seq.,  post,  and  "Partners,"  §§  44,  585  et  seq., 
post. 

Colorado.  Lien  assignable  before  being  perfected:  3  Mills's  Ann. 
Stats.,  2d  ed.,  §  2883;  Eagle  Gold  Min.  Co.  v.  Bryarly,  28  Colo.  262, 
65  Pac.  Rep.  52,  54;  Sprague  v.  Mouat  L.  &  I.  Co.,  14  Colo.  App.  107, 
60  Pac.  Rep.  179,  182  (1883,  1889);  Perkins  v.  Boyd,  16  Colo.  App.  266, 
65  Pac.  Rep.  350   (1893). 

Montana.  Lien  is  not  assignable  before  being  , perfected:  IMason 
V.  Germaine,  1  Mont.  263,  272  (1865);  but  is  so  after  being  perfected: 
Davis  V.  Bilsland,  85  U.  S.    (18  Wall.)   659,  bk.  21  L.  ed.   969. 

Nevada.  Lien  assignable:  Cutting's  Comp.  Laws  1900,  §  3897; 
Skyrme  v.  Occidental  M.  &  M.  Co.,  8  Nev.  219.  In  this  case  the  lien 
had  been  perfected,  and  the  court  held  that  no  particular  form  of 
written  assignment  was  necessary. 

Oklahoma.  "Claims  for  liens"  are  assignable:  Rev.  Stats.  1903 
(4820),  §  622. 


21  SCOPE   AND  CONSTIIUCTION   OF   THE   LAW.  §  25 

§  25.  Same.  Confusion  in  the  authorities.  In  the  Cali- 
fornia cases,  as  in  those  of  other  states,  there  is  some  con- 
fusion upon  this  subject.  The  rules  are  variously  stated, 
depending  in  some  instances  upon  the  rule  provided  by  the 
statute  itself,  and  in  others  upon  the  particular  provision 
of  the  law  under  investigation.  It  is  also  to  be  observed 
that  the  degree  or  rule  of  evidence  laid  down  to  bring  the 
case  within  the  statute  "  as  construed  "  is  sometimes  con- 
founded with  the  "  rule  of  construction."  It  was  at  first 
held  in  California,  as  elsewhere,  that  this  was  an  extraor- 
dinary remedy,  in  derogation  of  the  common  law,  and  must 
be  strictly  construed ;  ^^  but  later  it  was  held  that  such  liens 

Oregon.     Brown  v.  Harper,   4  Oreg-.  89    (decided  in  1S70). 

Utah.  Lien  is  assignable:  Rev.  Stats.,  §1396;  Culmer  v.  Clift, 
14  Utah  286,  47  Pac.  Rep.  85   (1890). 

\%'a!4hIiigton.  Lien  and  right  to  lien  are  assignable:  Pierce's  Codes, 
§  6108.  See  Fairhaven  L.  Co.  v.  Jordan,  5  Wash.  729,  32  Pac.  Rep.  729; 
Casey  v.  Ault,  4  Wash.   167,  29  Pac.  Rep.  1048. 

AHSignment  of  moneys  to  become  due  under  lien  as  security:  Potvin 
V.  Denny  Hotel  Co.,  9   Wash.  316,   36  Pac.  Rep.  320,   38  Id.  1002. 

«2  See,  generally,  "Construction  of  Claim,"  §371,  post,  and  "Con- 
struction of  Contracts,"   S  216,   post. 

Colorado.  Mouat  L.  Co.  v.  Gilpin,  4  Colo.  App.  534,  36  Pac.  Rep. 
892. 

Utah.  Cary-Lonibard  L.  Co.  v.  Partridge,  10  Utah  322,  37  Pac.  Rep. 
572;  Morrison  v.  Cary-Lonibard  Co.,  9  Utah  70,  33  Pac.  Rep.  238. 

To  arrive  at  the  legislative  intent,  the  court  cannot  segregate  a 
section  or  a  part  of  a  chapter  on  the  subject,  but  the  object  of  the 
law  as  a  whole  must  be  considered.  In  relation  to  the  mechanic's- 
lien  statute,  courts  should  not  withhold  the  benefits  intended  by  a 
series  of  sections  on  one  subject  by  a  too  limited  or  strict  construction 
of  one  section  or  part  of  a  whole  series,  so  as  to  destroy  the  intended 
effects  of  other  parts.  Where  the  statute  fails,  courts  cannot  create 
rights,  and  should  not  do  so  by  unnatural  or  forced  construction. 
Rev.  Stats.  1898,  tit.  xxxix,  ch.  i,  prescribes  the  methods  of  procuring 
such  liens,  and  provides  the  procedure  to  enforce  them  as  against  the 
property,  the  owner,  and  among  other  claimants,  and  must  be  con- 
strued on  the  theory  that  some  of  the  provisions  are  intended  for  the 
owner  and  others  intended  for  the  claimants.  Some  of  these  provisions 
may  be,  and  frequently  are,  intended  for  the  benefit  of  some  who 
stand  in  a  particular  relation,  and  not  to  others  standing  in  a  different 
relation  to  either  the  owner  or  the  property.  A  lien,  once  acquired 
by  labor  performed  on  a  building  with  the  consent  of  the  owner, 
should  not  be  defeated  by  technicalities,  when  no  rights  of  others 
are  infringed,  and  no  express  command  of  the  statute  is  disregarded: 
Eccles  L.  Co.  v.  Martin    (Utah),   87  Pac.  Rep.   713,   716. 

"  Walker  v.  Hauss-Hijo,  1  Cal.  183,  185;  Bottomly  v.  Rector  etc.  of 
Grace  Church,  2  Cal.  90,  92. 

Colorado.  Sayre-Newton  L.  Co.  v.  Park,  4  Colo.  App.  482,  36  Pac. 
Rep.  445;  Arkansas  R.  L.  Reservoir  and  Canal  Co.  v.  Flinn,  3  Colo. 
App.    381. 


§  25  MECHANICS'   LIENS.  22 

should  be  favored  in  the  law."*     After  the  adoption  of  the 
California   codes,    a    substantial    compliance    only   was    re- 

It  should  be  strictly  construed  as  against  a  iiiirchaser  without 
knowledge  of  the  lien:  Anderson  v.  Bingham,  1  Colo.  App.  222,  28 
Pac.  Rep.  145. 

Liberal  construction  -when;  strict  -ivhen.  It  should  be  liberally 
construed  as  to  the  remedial  portion  of  it,  but  it  miist  be  strictly 
construed  in  determining  the  question  as  to  whether  a  right  to  a 
lien  exists.  Where  the  inquiry  is,  whether  a  person  asserting  a  lien, 
or  the  work  for  which  he  claims  it,  comes  within  the  statute,  or 
whether  the  statutory  requirements  necessary  to  initiate  the  lien 
have  been  complied  with,  the  statute  must  be  strictly  construed: 
Lindemann  v.  Belden  Consol.  M.  &  M.  Co.,  16  Colo.  App.  342,  65  Pac. 
Rep.  403;  Sprague  In  v.  Co.  v.  Mouat  L.  &  I.  Co.,  14  Colo.  App.  107,  60 
Pac.  Rep.  179,  184  (as  to  perfecting  tne  right);  and  the  right  to  the 
lien  is  strictly  construed  in  determining  the  cases  within  it:  Fleming 
V.  Prudential  Ins.  Co.  of  Am.,  19  Colo.  App.  126,  73  Pac.  Rep.  752. 

Hawaii.  All  the  provisions  of  the  statute  must  be  strictly  con- 
strued: Lucas  V.  Redward,  9  Hawn.  23,  25;  Allen  v.  Redward,  10 
Hawn.    151,    159. 

Idaho.  White  v.  Mullins,  3  Idaho  434,  31  Pac.  Rep.  801;  Bradbury 
V.   Idaho  &  O.  L.  Imp.  Co.,   2  Idaho   239,   10  Pac.   Rep.   620. 

Montana.  See  Richards  v.  Lewisohn,  19  Mont.  128,  47  Pac.  Rep. 
645;  Black  v.  Appolonio,  1  Mont.  342  ("strictly  pursued"  and  "lib- 
erally construed" — a  case  of  forfeiture);  Smith  v.  Sherman  M.  Co., 
12  Mont.  524,  31  Pac.  Rep.  72;  Murray  v.  Swanson,  18  Mont.  533,  46 
Pac.  Rep.  441. 

Claimant  required  to  comply  strictly  with  statute  as  to  notice  to 
owner:   Whiteside  v.   Lebscher,   7   Mont.   473,   17   Pac.   Rep.   548. 

New  Mexico.  Post  v.  Miles,  7  N.  M.  317,  34  Pac.  Rep.  586  (dis- 
senting opinion).  Contra:  Hobbs  v.  Spiegelberg,  3  N.  M.  222,  5  Pac. 
Rep.  529  (as  to  statute  being  in  derogation  of  common  law) ;  Finane 
V.  Las  Vegas  Hotel  &  Imp.  Co.,  3  N.  M.  256,  5  Pac.  Rep.  725,  consid- 
ered in  Minor  v.  Marshall,   6  N.  M.  194,   27  Pac.  Rep.  481. 

Oregon.  Kendall  v.  McFarland,  4  Oreg.  292,  293;  Dalles  L.  &  M. 
Co.  V.  Wasco  W.  Mfg.  Co.,  3  Oreg.  527.  See  Pilz  v.  Killingsworth, 
20   Oreg.   432,   26  Pac.  Rep.   305. 

"  Tuttle  V.  Montford,   7  Cal.  358,  360   (question  of  priority). 

The  struggle  of  two  contending  principles  manifests  itself.  On 
the  one  hand,  it  became  necessary  to  protect  the  rights  of  owners  of 
property  from  subtile  encroachments,  and  on  the  other,  to  carry  out 
the  true  spirit  of  the  law  and  the  intention  of  the  legislature.  Parts 
of  the  same  statute  were  construed  strictly  or  liberally,  as  the  case 
might  be,  without  reference  to  any  distinct  principle:  See  Cary  Hard- 
ware Co.  V.  McCarty,  10  Colo.  App.  200,  205,  50  Pac.  Rep.  744.  Thus 
in  McAlpin  v.  Duncan,  16  Cal.  127,  it  was  again  held  that  the  law 
was  in  derogation  of  the  common  law,  and  should  be  strictly  con- 
strued; but  as  the  facts  show  that  a  double  payment  was  demanded 
from  the  owner,  which,  of  course,  was  a  penalty,  the  case  will  be  seen 
to  fall  within  the  modern  rule,  although  the  general  principle  stated 
in  the  case  is  no  longer  held;  but  in  Davis  v.  Livingston,  29  Cal.  283, 
287  (and  see  Henley  v.  Wadsworth,  38  Cal.  356,  362),  under  the  act 
of  1862,  strict  compliance  with  all  the  provisions  of  the  statute  was 
again  required.  In  a  later  case,  under  the  act  of  1867-68,  the  court 
returned  somewhat  to  the  doctrine  of  Tuttle  v.  Montford,  supra,  and 
it  was  held  that  only  a  substantial  observance  of  the  provisions  of 
the  statute  was  required:  Wood  v.  Wrede,  46  Cal.   637. 


23  SCOPE   AND  CONSTRUCTION   OP   THK   LAW.  §  25 

quired,®^  and  subsequently  (1885)  the  legislature  amended 
section  eleven  hundred  and  eighty-four  of  the  Code  of  Civil 

Colorado.  It  should  be  liberaUy  construed,  to  advance  its  objects: 
Rico  Reduction  &  M.  Co.  v.  Musgrave,  14  Colo.  79,  23  Pac.  Rep.  458; 
but  cannot  be  extended  by  construction  to  cases  not  provided  for 
by  the  statute:  Barnard  v.  McKenzie,  4  Colo.  251,  252.  "It  must  also 
be  conceded  to  be  the  settled  policy  in  this  state  ...  to  favor  the 
enforcement  of  mechanics'  liens,  when  the  lien  has  once  attached,  by 
a  liberal  construction  of  the  statute,  so  as  to  advance  its  objects: 
Barnard  v.  McKenzie,  4  Colo.  251;  Williams  v.  Uncompahg-re  C.  Co., 
13  Colo.  469,  22  Pac.  Rep.  806;  Cannon  v.  Williams,  14  Colo.  21,  23 
Pac.  Rep.  456;  Empire  L.  &  C.  Co.  v.  Engley,  18  Colo.  388,  33  Pac. 
Rep.  153;  Small  v.  Foley,  8  Colo.  App.  435,  47  Pac.  Rep.  64.  We  do 
not  regard  Arkansas  R.  L.  R.  &  C.  etc.  Co.  v.  Flinn,  3  Colo.  App.  381, 
33  Pac.  Rep.  1006,  and  Rice  v.  Carmichael,  4  Colo.  App.  84,  34  Pac.  Rep. 
1010,  as  being  in  conflict  with  these  cases.  .  .  .  The  languag-e  of  the 
court  applies  to  antecedent  acts,  which  the  statute  imperatively 
requires  to  be  done  by  the  party  seeking  to  establish  a  lien  before  the 
lien  is  created":  Cary  Hardware  Co.  v.  McCarty,  10  Colo.  App.  200, 
204,  50  Pac.  Rep.  744.  See  also  Hanna  v.  Colorado  Sav.  Bank,  3  Colo. 
App.  28,  31  Pac.  Rep.  1020;  Chicago  L,.  Co.  v.  Newcomb,  19  Colo.  App. 
265,    74   Pac.   Rep.   786,   791. 

Rules  of  coii.structioii.  Liberal  and  strict.  When  a  lien  has  been 
lawfully  acquired,  for  the  purpose  of  its  enforcement  the  statute  will 
be  liberally  construed,  but  yet,  since  the  object  of  the  law  is  in 
invitum  to  charge  the  property  of  one  with  a  liability  for  a  debt  of 
another,  persons  claiming  its  benefit  must  bring  themselves  clearly 
within  its  purview,  as  belonging  to  some  of  the  classes  in  whose 
favor  the  right  is  allowed:  Pitschke  v.  Pope,  20  Colo.  App.  328,  78 
Pac.  Rep.  1077.  The  remedial  portions  of  the  statute  should  be  lib- 
erally construed;  the  other  parts  —  those  upon  which  the  right  to  the 
existence  of  the  lien  depends  —  being  in  derogation  of  the  common 
law  —  should  be  strictly  construed.  That  part  of  the  statute  in  ques- 
tion is  not  remedial,  but  pertains  wholly  to  the  acquirement  of  the 
lien:  Maher  v.  Sliull,  11  Colo.  App.   322,   52  Pac.  Rep.  1115. 

Construction  of  proviso,  Sess.  Laws  1805,  §  8,  p.  202,  as  to  lien  on 
mines:  See  Wilkins  v.  Abell,   26  Colo.   462,   58  Pac.  Rep.   612. 

Idaho.  Liberally  construed:  Phillips  v.  Salmon  R.  M.  &  D.  Co., 
9  Idaho  149,  72  Pac.  Rep.  886,  citing  Rev.  Stats.  1887,  §4;  Idaho  M.  & 
M.  Co.  v.  Davis,  123  Fed.  Rep.  396,  59  C.  C.  A.  200;  Flagstaff  M.  Co.  v. 
Cullins,  104  U.  S.  176,  26  L.  ed.  704  (with  reference  to  the  persons 
entitled). 

Montana.  Lilierally  construed:  Davis  v.  Alvord,  94  U.  S.  545  bk  ''4 
L.  ed.   283. 

Nevada.  Liberally  construed:  Malter  v.  Falcon  M.  Co.,  18  Nev. 
209,  2  Pac.  Rep.  50;  Lonkey  v.  Wells,  16  Nev.  271,  274;  Hunter  v. 
Truckee  Lodge,  14  Nev.  24,  28  (time  of  filing  claim);  Skyrme  v 
Occidental  M.  &  M.  Co.,  8  Nev.  219,  221. 

So     construed     as     to     protect     lien     claimants     of     whatever     kind 

whether  contractors,  machinists,  material-men,  or  laborers, the  law 

should  be;  and  liberally  construed  to  effect  its  object  and  promote 
justice:  Salt  Lake  H.  Co.  v.  Chainman  M.  &  E.  Co.,  137  Fed  Rep  63' 
(Cir.  Ct..  Nev.). 

Oregon.  See  Nicolai  Bros.  Co.  v.  Van  Fridagh,  23  Oreg.  149  31 
Pac.   Rep.   288. 

""  Hooper  v.  Flood,  54  Cal.  218,  221;  Blackman  v.  Marsicano,  61  Cal. 
639,    640,   following  Kerr's   Cyc.  Code   Civ.  Proc,   §  4. 


§  25  MECHANICS'  LIENS.  24 

Procedure,  so  as  to  require  only  a  substantial  compliance 
Avith  that  section,  so  far  as  the  contract,  payments,  and 
notice  to  the  owner  are  concerned;  but  later  it  was  held 
that  the  provisions  of  the  code  relating  to  the  claim  of  lien 
are  to  be  liberally  construed,  with  the  view  to  effect  its 
objects  and  promote  justice.''**  However,  it  was  subsequently 
said,  in  reference  to  the  claim  of  lien,  that,  although  the  rule 
had  been  somewhat  relaxed  in  favor  of  liens  under  the 
chapter  on  mechanic's  liens,  very  great  strictness  of  perform- 

Alaska.  Substantial  observance;  whatever  is  made  necessary  to 
the  existence  of  the  lien  must  be  complied  with  or  the  attempt  to 
create  it  will  be  futile:  Jorgensen  Co.  v.  Sheldon,  2  Alas.  607,  610; 
Russell  V.  Hayner,  130  Fed.  Rep.  90,  64  C.  C.  A.  424.  2  Alas.  702,  703 
(Dig.). 

Oklahoma.  The  court  said,  as  to  the  persons  entitled,  contractors 
and  material-men:  "It  is  true  that  the  statute  should  not  be  en- 
larged beyond  its  provisions;  but  it  is  equally  true  that  it  should 
not  receive  sucli  a  narrow  construction  as  to  exclude  from  its  appli- 
cation persons  or  classes  who  are  intended  to  be  placed  within  its 
protection.  The  rule  that  statutes  in  derogation  of  the  common  law 
shall  be  strictly  construed  has  no  application  here.  This  statute 
under  contemplation  should  receive  a  liberal  interpretation.  Of 
course,  it  should  not  be  so  construed  as  to  reach  out  and  bring  within 
its  provisions  persons  not  included  within  it,  or  so  as  to  confer 
special  privileges  upon  them":  Ryndak  v.  Seawell,  13  Okl.  737,  76 
Pac.  Rep.  170,  172.  Substantial  compliance  (as  to  claim  of  lien): 
Blanshard  v.  Schwartz,  7  Okl.  23,  54  Pac.  Rep.  303;  Ferguson  v. 
Stephenson-Brown  L,.  Co.,   14  Okl.   148,  77  Pac.  Rep.  184. 

Oregon.  Substantial  compliance:  Nicolai  Bros.  Co.  v.  Van  Fridagh, 
23  Oreg.  149,  31  Pac.  Rep.  288;  Pilz  v.  Killingsworth.  20  Oreg.  432, 
26  Pac.  Rep.  305;  Allen  v.  Rowe,  19  Oreg.  188,  23  Pac.  Rep.  901. 

New  Mexico.  Substantial  compliance:  Springer  L.  Assoc,  v.  Ford, 
168  U.  S.  513,  42  L.  ed.  562,  18  Sup.  Ct.  Rep.  170. 

Utah.  Where  the  statute  requires  certain  things  to  be  done  to 
acquire  a  right,  there  must  be  a  substantial  compliance  with  the 
statute,  but  where  the  statue  requires  certain  things  to  be  done  in 
case  certain  conditions  exist,  the  statute  is  not  operative,  unless 
the  conditions  are  present:  Eccles  L.  Co.  v.  Martin  (Utah),  87  Pac. 
Rep.   713.   718. 

Washington.  Substantial  compliance:  McHugh  v.  Slack,  11  Wash. 
370,  372,  39  Pac.  Rep.  674;  Gen.  Stats.,  §  1667. 

Wyoming.  Substantial  compliance  with  all  the  essential  require- 
ments of  the  statute:  Wyman  v.  Quale,  9  Wyo.  326,  63  Pac.  Rep.  988. 

"=«  Treddinick  v.  Red  Cloud  M.  Co.,  72  Cal.  78,  80,  13  Pac.  Rep.  152 
(1887);  Union  L.  Co.  v.  Simon  (Cal.  App.,  March  13,  1906),  89  Pac. 
Rep.  1077,   1078,  aff.  sup.  ct.,  89  Pac.  Rep.   1081. 

Colorado.  Substantial  compliance  to  lay  the  foundation  of  lien: 
Greeley  S.  L.  &  P.  R.  Co.  v.  Harris,  12  Colo.  226  (1881),  20  Pac.  Rep. 
764;  Cannon  v.  Williams,  14  Colo.  21,  23  Pac.  Rep.  456;  Gary  Hardware 
Co.  v.  McCarty,  10  Colo.  App.  200,  50  Pac.  Rep.  744. 

See  note  64,  ante,  this  section. 


25  SCOPE  AND  CONSTRUCTION  OF  THE  LAW.  §  25 

anee  is  generally  exacted."^  But  again  it  was  said  that  it  was 
a  remedial  statute,  adopted  in  obedience  to  the  constitution 
of  Califor^ia,''^  and  is  to  be  liberally  construed,  in  further- 
ance of  the  purpose  for  which  it  is  authorized.*"*  This  lan- 
guage was  used  with  reference  to  the  claim  of  lien,  and  is 

Idaho.  Colorado  Iron  Works  v.  Riekenberg,  4  Idaho  262,  38  Pac. 
Rep.    651,    652. 

JVevada.  Construed  to  effect  substantial  justice  (claim  of  lien): 
Salt  Lake  H.  Co.  v.  Chainman  M.  &  B.  Co.,  137  Fed.  Rep.  632,  638  (Cir. 
Ct.,  Nev.).     See  Skyrme  v.  Occidental  M.  Co.,  8  Nev.  219,  239. 

New  Mexico.  Liberally  construed:  Mountain  Electric  Co.  v.  Miles, 
9  N.  M.  512,  56  Pac.  Rep.  284,  285;  Ford  v.  Springer  L.  Assoc,  8  N.  Ivi. 
48,  41  Pac.  Rep.  541,  overruling  Finane  v.  Hotel  Co.,  3  N.  M.  256,  5  Pac. 
Rep.  725  (which  required  strict  construction).  See  Post  v.  Miles,  7 
N.  M.  317,  34  Pac.  Rep.  586;  Minor  v.  Marshall,  6  N.  M.  194,  27  Pac. 
Rep.  481  (substantial  compliance;  "strict"  and  "liberal"  construc- 
tion depends  upon  the  facts  in  each  specific  case).  Remedial,  and 
construed  to  effectuate  object:  Springer  L.  Assoc,  v.  Ford,  168  U.  S. 
513,  bk.  2  L.  ed.  562,  18  Sup.  Ct.  Rep.  170. 

Utah.  Remedial  provisions  liberally  construed:  Elwell  v.  Morrow, 
28  Utah   278,   78  Pac.  Rep.  605,  607. 

I^'asliingtoii.  Liberally  construed  (claim  of  lien):  Powell  v.  Nolan, 
27  Wash.  318,  67  Pac.  Rep.  712,  719;  Seattle  L.  Co.  v.  Sweeney,  33  Wash. 
691,   74   Pac.   Rep.   1001. 

«"  San  Diego  L.  Co.  v.  Wooldredge,  90  Cal.  574,  579,  27  Pac.  Rep.  431. 

Oregon.  In  Willamette  S.  M.  L.  &  Mfg.  Co.  v.  Shea,  24  Oreg.  40, 
53,  32  Pac.  Rep.  759,  it  was  said:  "While  we  have  required  those  who 
would  receive  the  benefit  of  the  statute  to  comply  with  its  positive 
requirements  in  order  to  acquire  a  valid  lien  (Gordon  v.  Deal,  23  Oreg. 
153,  31  Pac.  Rep.  287;  Nicolai  Bros.  Co.  v.  Van  Fridagh,  23  Oreg.  149, 
31  Pac.  Rep.  288),  we  think  a  more  liberal  rule  should  prevail  as  to 
those  parts  of  the  statute  less  definite,  which  to  rigorously  enforce 
would  deprive  the  claimant  of  its  benefits." 

«*  Const.  Cal.  1879,  art.  xx,  §  15,  Henning's  Gen.  I,n^\H  Cal.,  p.  civ. 

•»  Corbett  v.  Chambers,  109  Cal.  178,  184,  41  Pac.  Rep.  873  (claim 
of  lien);  McGinty  v.  Morgan,  122  Cal.  103,  54  Pac.  Rep.  392  (claim  of 
lien);  Castagnetto  v.  Coppertown  M.  &  S.  Co.,  146  Cal.  329,  334,  80  Pac. 
Rep.  74  (claim  of  lien);  Macomber  v.  Bigelow,  126  Cal.  9,  16,  58  Pac. 
Rep.  312  (claim  of  lien);  Union  L.  Co.  v.  Simon  (Cal.  App..  March  13, 
1906),  89  Pac.  Rep.  1077,  1078,  aflirniea  in  supreme  court.  89  Pac.  Rep. 
1081;  Continental  B.  &  L.  Assoc,  v.  Hutton,  144  Cal.  609,  611,  78  Pac. 
Rep.  21  (claim  of  lien);  Southern  Cal.  L.  Co.  v.  Peters.  3  Cal.  App. 
478,  86  Pac.  Rep.  816;  Valley  L.  Co.  v.  Wright,  2  Cal.  App.  288,  84  Pac. 
Rep.  58;  Newell  v.  Brill.  2  Cal.  App.  61,  62,  83  Pac.  Rep.  76  (hearing 
In  supreme  court  denied  —  claim  of  lien). 

See  §§  28-38,  ante. 

Alaska.  The  courts,  in  fixing  the  rule  of  construction  of  these 
laws,  look  to  the  statutes  themselves  to  ascertain  whether  they  should 
be  strictly  or  liberally  interpreted:  held,  that  the  lien  law  of  Alaska 
should  be  liberally  construed;  the  court  saying.  "The  evident  spirit 
and  purpose  of  the  act  is  to  do  substantial  justice  to  all  parties  who 
may  be  affected  by  its  provisions,  and  the  courts  should  avoid  un- 
friendly strictness  and  mere  technicality":  Russell  v.  Hayner,  130 
Fed.  Rep.  90,  64  C.  C.  A.  424,  2  Alas.  702,  703  (Dig.);  Jorgensen  v. 
Sheldon,   2   Alas.   607,   609;    but  in   following  this   rule,   courts   should 


always   be    construed   in 


§  26  MECHANICS'   LIENS.  26 

possibly  practically  identical  with  the  doctrine  of  "  sub- 
stantial compliance,"  and  the  expressions  seem  to  be  used 
interchangeably  in  the  decisions.^*^  "  While  the  courts 
always  require  a  substantial  compliance  with  the  statute  in 
regard  to  the  statement  in  the  notice  of  lien  and  the  pro- 
ceedings thereunder,  yet  they  will  not  give  the  statute  such 
a  narrow  or  technical  construction  as  to  fritter  away,  im- 
pede, and  destroy  the  right  of  the  lien  claimant."  ^^ 

§  26.     Same.     Penal  provisions.     The  language  used  will 
be    construed   in   the   light   of  the   purpose   to    be 

always  be  careful  not  to  impair  the  balance  of  the  statute,  or  fritter 
away  its  meaning-  by  construction:  Russell  v.  Hayner,  supra. 

Colorado.  See  Greeley  S.  L.  &  P.  R.  Co.  v.  Harris,  12  Colo.  226,  20 
Pac.  Rep.  764. 

Montana.  In  so  far  as  the  granting  of  the  lien  is  concerned,  the 
statute  is  remedial  in  character,  and  should  be  liberally  construed; 
and  in  so  far  as  the  procedure  is  concerned,  by  which  the  lien  is 
claimed  or  enforced,  tne  statute  should  be  strictly  followed:  Western 
Iron  Works  v.  Montana  P.  &  P.  Co.,  30  Mont.  550,  77  Pac.  Rep.  413,  416. 

While  the  statute  Is  in  some  respects  remedial  in  its  nature,  and 
thus  far  should  be  construed  liberally,  it  creates  a  new  right,  and 
the  procedure  by  which  this  new  riglit  is  perfected  and  enforced  must 
be  strictly  followed:  McGlaughlin  v.  Wormser,  28  Mont.  177,  72  Pac. 
Rep.  428.  See  Yerrick  v.  Higgins,  22  Mont.  502,  57  Pac.  Rep.  95,  98; 
Missoula  M.  Co.  v.  O'Donnell,  24  Mont.  65,  60  Pac.  Rep.  991;  Cook  v. 
Gallatin  R.  Co.,   28  Mont.  340,   72  Pac.  Rep.  678. 

"Remedial":  See  Richards  v.  Lewisohn,  19  Mont.  128,  47  Pac.  Rep. 
645;  Black  v.  Appolonio,  1  Mont.  342. 

New  Mexico.  "Remedial":  Ford  v.  Springer  L.  Assoc,  8  N.  M.  37, 
41  Pac.  Rep.  541;  Genest  v.  Las  Vegas  Masonic  B.  Assoc,  11  N.  M.  251, 
67  Pac.  Rep.  743. 

Oregon.  "Remedial,"  and  should  receive  a  liberal  construction: 
Ainslie  v.  Kohn,  16  Oreg.  363,  371,  19  Pac.  Rep.  97  (claim  of  lien). 
See  Nicolai  Bros.  Co.  v.  Van  Fridagh,  23  Oreg.  149,  31  Pac.  Rep.  288. 

AVashington.  All  the  provisions  of  tlie  chapter  are  to  be  liberally 
construed:  Pierce's  Code,  §  6119.  See  Gates  v.  Brown,  1  W^ash.  470,  474; 
Kellogg  V.  Little  and  Smythe  Mfg.  Co.,  1  Wash.  407,  25  Pac.  Rep.  461. 

'»  Russ  L.  &  M.  Co.  V.  Garrettson,  87  Cal.  589,  595,  25  Pac.  Rep.  747; 
Hagman  v.  Williams,  88  Cal.  146,  151,  25  Pac.  Rep.  1111;  Yancy  v. 
Morton,  94  Cal.  558,  561.  See  Stimson  M.  Co.  v.  Riley  (Cal.,  Dec.  20, 
1895),  42  Pac.  Rep.  1072;  Castagnetto  v.  Coppertown  M.  &  L.  Co.,  146 
Cal.  328,  332,  80  Pac.  Rep.  74;  Meyer  v.  Quiggle,  140  Cal.  495,  497,  74 
Pac.  Rep.  40;  San  Francisco  Pav.  Co.  v.  Fairfield,  134  Cal.  222,  224,  66 
Pac.  Rep.  255  (claim  of  lien):  Santa  Cruz  Rock  Pav.  Co.  v.  Lyons,  133 
Cal.  114,  119,  65  Pac.  Rep.  329   (claim  of  lien). 

See  also  "Original  Contract,"  §§194,  211,  post;  "  Claim,"  §§370 
et  seq.,  post,  and  "  Waiver  and  Forfeiture,"  §§  627  et  seq.,  post. 

"  Castagnetto  v.  Coppertown  M.  &  L.  Co.,  146  Cal.  329,  80  Pac.  Rep. 
74  (claim  of  lien),  citing  Ascha  v.  Fitch  (Cal.,  Oct.  6,  1896),  46  Pac 
Rep.    298;   Hagman  v.   Williams,   88   Cal.    146,    25   Pac.   Rep.    1111;    Russ 


27  SCOPE   AND  CONSTRUCTION   OF   THE   LAW.  §  26 

effected.  "  The  statute,  imposing  as  it  does  a  lia])ility  upon 
the  owner  beyond  the  price  he  contracted  to  pay,  in  favor 
of  a  subcontractor  with  whom  he  has  no  contractual  relation, 
is  penal  as  well  as  remedial,  and  therefore,  whilst  it  must 
have  such  construction  as  will  reasonably  effectuate  its 
remedial  purposes,  it  must  be  strictly  confined  to  such  pur- 
poses. No  merely  technical  construction  can  be  indulged 
for  the  purpose  of  visiting  a  penalty  upon  the  owner,  unless 
there  has  been  a  substantial  failure  to  comply  with  the  law, 
such  as,  if  continued,  would  defeat  the  remedial  purposes 
of  the  statute ;  but  if  there  be  a  reasonable  doubt  as  to  the 
construction  of  the  statute,  or  as  to  whether  the  defendants 
[owners]  complied  with  it,  they  should  have  the  benefit  of 
it."  "  So  far  as  the  statute  has  the  effect  of  compelling  the 
owner  to  pay  more  than  he  agreed  to  pay,  or  to  pay  his 
debt  twice,  it  is  highly  penal,  and  should  be  strictly  con- 
strued in  his  favor.  Those  who  seek  to  inflict  upon  him  a 
penalty  for  his  failure  to  comply  with  the  terms  of  the  law 
must  show  clearly  that  a  dereliction  has  occurred.  The  law 
must  be  construed  against  the  exaction  of  the  penalty,  if 
for  any  reason  it  can  be.''^  And  so  the  penal  provisions 
rendering  the  contract  void  are  to  be  strictly  construed,  and 
every  reasonable  intendment  made  to  avoid  such  a  penalty.^* 

L.  &  M.  Co.  V.  Garrettson,  87  Cal.  589,  595,  25  Pac.  Rep.  747;  McGinty 
V.  Morg-an,  122  Cal.  103,  105,  54  Pac.  Rep.  392;  Macomber  v.  Bigelow, 
126  Cal.  9,  58  Pac.  Rep.  312. 

"  Joost  V.  Sullivan,  111  Cal.  286,  296,  43  Pac.  Rep.  896.  See  Stim- 
son  M.  Co.  V.  Riley  (Cal.,  Dec.  20,  1895),  42  Pac.  Rep.  1072.  In  Reese 
V.  Bald  Mountain  Consol.  G.  M.  Co.,  133  Cal.  285,  290,  65  Pac.  Rep.  578, 
it  was  said:  "The  party  desiring  to  hold  and  enforce  a  lien  upon  the 
property  of  one  who  did  not  employ  him  must  bring-  himself  clearly 
within  the  terms  of  the  statute."  Quaere:  Is  this  an  intimation  tliat 
a  different  rule  should  apply  to  subclaimants  than  to  original  con- 
tractors?    But  see  Union  L.  Co.  v.  Simon   (Cal.  Sup.),  89  Pac.  Rep.  1081. 

See  §  16,  ante,  and  authorities. 

New  Mexico.  See  dissenting  opinion.  Minor  v.  Marshall,  6  N.  M. 
194,   27   Pac.   Rep.   481,   where  this   rule   is  also   laid   down. 

Oregon.     See  Kezartee  v.  Marks,  15  Oreg.  529,  534,  16  Pac.  Rep.  407. 

"  West  Coast  L.  Co.  v.  Knapp,  122  Cal.  81,  54  Pac.  Rep.  533;  Hamp- 
ton V.  Christensen,  148  Cal.  729,  734,  84  Pac.  Rep.  200. 

"  San  Diego  L.  Co.  v.  Wooldredge,  90  Cal.  574,  579,  27  Pac.  Rep. 
431;  West  Coast  L.  Co.  v.  Knapp,  122  Cal.  81,  54  Pac.  Rep.  533;  Brill 
V.  De  Turk,  130  Cal.  241,  2:3,  62  Pac.  Rep.  462  (provision  as  to  pay- 
ments, under  Kerr's  Cyc.  Code  Civ.  I'roe.,  §1184 — substantial  com- 
pliance required). 


§  27  MECHANICS'   LIENS.  28 

The  same  is  true  as  to  the  provision  for  the  forfeiture  of 
liens  of  claimants."  It  has  also  been  said  in  reference  to 
the  strict  construction  of  the  penal  provisions,  "  There  may 
be  some  doubt  whether  this  rule  of  construction,  which 
obtained  before  the  codes  were  adopted,  is  to  be  given  its 
full  force  under  the  provisions  of  the  code.'*^  .  .  .  But, 
however  this  may  be,  it  will  be  conceded  that  such  statutes 
should  not  receive  a  construction  unduly  favoring  the  impo- 
sition of  a  penalty  or  forfeiture.  And  in  the  case  of  a 
statute  which  deals  with  the  constitutional  right  of  an  owner 
of  property  to  make  contracts  relating  to  its  use  and  enjoy- 
ment, the  restriction  of  the  right  can  go  only  to  the  form 
of  the  contract,"  and  cannot  be  extended  by  construction 
beyond  what  is  expressed."  ''^ 

§  27.  Same.  Resume.  What  the  courts  have  said  having 
been  set  forth,  it  will  be  observed  that,  except  at  certain 
points,  there  has  been  considerable  wavering,  and  no  attempt 
will  be  made  to  reconcile  what  appears  confiieting.  The 
following  tentative  suggestion  is,  however,  made,  and  is 
considered  fair,  in  the  light  of  the  language  used  in  the 
decisions : 

1.  As  to  the  elements  creating  the  inchoate  right  to  the 
lien,  the  statute  should  be  strictly  construed:  (a)  As  to  the 
classes  of  persons  entitled  to  a  lien;  (b)  As  to  the  nature 
of  the  labor  for  which  the  lien  is  given;  (c)  As  to  the  object 

"  SchaUert-Ganahl  L.  Co.  v.  Neal,  91  Cal.  362,  365,   29  Pac.  Rep.  622. 

See  "Forfeiture,"  §§632  et  seq.,  post. 

Ala»)ka.  Where  a  particular  enactment  deals  fairly  and  equitably 
with  both  owner  and  the  lienor,  liberal  interpretation  seems  to  be  the 
rule  adopted;  but  where  a  statute  seems  to  be  unnecessarily  severe 
upon  one,  and  in  favor  of  the  other,  resulting  in  manifst  injustice, 
the  courts  have  endeavored  to  relieve  the  severity,  holding  the  party 
favored  to  a  strict  compliance  with  the  statute:  Jorgensen  v.  Sheldon, 
'^  Alas.  607,  608. 

Colorado.  Same  principle  as  text:  See  Aste  v.  Wils'on,  14  Colo.  App. 
323,   59  Pac.   Rep.   S46. 

'"   Kerr's   C'yc.  Code  Civ.  Proc,   §  4. 

"  Stimson  M.  Co.  v.  Braun,  136  Cal.  125,  68  Pac.  Rep.  481,  89  Am.  St. 
Rep.  116,  57  L.  R.  A.  726. 

"  Snell  V.  Bradbv'.ry,  139  Cal.  379,  381,  382,  73  Pac.  Rep.  150  (con- 
struing the  penal  provisions  of  §  1183,  Kerr's  Cyc.  Code  Civ,  Proc,  as 
to  the  validity  of  the  contract). 


29  SCOPE   AND  CONSTRUCTION   OF  THE  LAW.  §  27 

upon  which  the  labor  is  done  or  for  which  the  materials 
are  furnished;  (d)  As  to  the  character  of  the  materials  for 
Avhich  a  lien  is  given  ;  —  provided  that  constitutional  manda- 
tory liens  should  be  construed  in  the  light  of  the  constitu- 
tional provision.'" 

2.  As  to  the  perfection  of  the  lien,  the  right  to  perfect 
the  same  having  been  acquired,  a  more  liberal  rule  of  con- 
struction should  be  adopted  to  carry  out  the  objects  of  the 
legislation  and  promote  justice,  but  there  must  be  a  substan- 
tial compliance  with  the  statute. 

3.  After  the  lien  is  perfected  and  the  right  is  fully 
matured,  it  should  be  regarded  with  as  much  favor  and  as 
carefully  protected  as  any  other  right  guaranteed  by  the 
constitution,  and  should  be  governed  by  the  general  rules 
applicable  to  any  other  right  under  similar  circumstances. 

4.  Where  there  is  a  penal  provision,  it  should  be  strictly 
construed,  whether  that  provision  is:  1.  As  to  the  lien  or 
the  original  contract;  2.  Against  the  owner  or  against  the 
claimant ;  or  3.  Whether  under  a  provision  of  the  constitu- 
tion creating  such  a  lien  or  under  a  statute  carrying  the 
constitution  into  effect  which  provides  for  a  liberal  rule  of 
construction. 

5.  As  to  the  extent  of  the  lien,  whether  as  to  the  amount 
for  which  the  owner  or  his  land  is  liable,  or  as  to  priorities 
between  the  claimants  themselves,  or  as  against  third  per- 
sons, substantial  justice  to  all  parties,  invoking  the  usual 
rules  of  law  and  principles  of  equity,  should  be  the  guide. 
The  lien  being  in  existence,  the  right  being  created,  whether 
it  attaches  to  a  thing  of  greater  or  less  value,  or  perhaps 
of  no  value,  such  as,  for  instance,  a  defaulted  leasehold 
interest,  no  higher  standing  in  the  law  should  be  given  to 
it,  than  to  any  contractual  right  under  similar  circum- 
stances, unless  by  virtue  of  an  express  valid  provision  of 
the  statute. 

"  See  "Persons  Entitled,"  §§45  et  seq.,  post;  "Nature  of  Labor," 
§§130  et  seq.,  post;  "Object  on  Which  Labor  is  Done,"  §§166  et  seq., 
post;   and   "Nature   of   Materials,"    §§87-91,   post. 


§  27  MECHANICS'   LIENS.  30 

6.  As  to  the  remedial  provisions  of  the  statute,  namely, 
those  relating  to  procedure,  under  the  reformed  codes  of 
procedure,  as  well  as  under  an  express  provision  for  liberal 
construction  contained  in  the  statute  itself,  an  equally  liberal 
rule  of  interpretation  should  prevail,  whether  the  provision 
is  contained  in  the  act  creating  the  mechanic's  lien,  or  refers 
to  the  general  code  of  procedure. ^° 

*"  For  procedure,  see,  generally,  Kerr's  Cyc.  Code  Civ.  Proc. 


31  CONSTITUTIONAL   ASPECTS  —  LAW   APPLICABLE.  §  28 


CHAPTER    II. 

CONSTITUTIONAL    ASPECTS,    AND    THE    LAW    APPLICABLE. 

§  28.  Constitutional  provisions  creating  the  lien. 

§  29.  Same.     Operation  of  the  constitution. 

§  30.  Eaising  question   of  constitutionality. 

§  31.  Constitutionality  of  lien  statutes  generally. 

§  32.  The  contractual  relation. 

§  33.  Same.     Valid  contract. 

§  34.  Same.     Power  of  reputed  owner.     Estoppel. 

§  35.  "  Impairing  obligation  of  contracts." 

§  36.  Ketrospeetive  laws. 

§  37.  Same.     Homestead.     Priorities. 

§  38.  Repeals. 

§  39.  Contractor's  bond. 

§  40.  Attorneys'  fees  and  costs. 

§  41.  Jurisdiction.     Special  case. 

§  28.  Constitutional  provisions  creating  the  lien.^  Re- 
specting mechanics'  liens  the  California  constitution  con- 
tains the  following  provisions:  "Mechanics,  material-men, 
artisans,  and  laborers  of  every  class  shall  have  a  lien  upon 
the  property  upon  which  they  have  bestowed  labor  or 
furnished  material,  for  the  value  of  such  labor  done  and 
material  furnished;  and  the  legislature  shall  provide,  by 
law,  for  the  speedy  and  efficient  enforcement  of  such  liens."  ^ 
"  The  legislature  shall  not  pass  local  or  special  laws  in 
any  of  the  following  enumerated  cases,  that  is  to  say:  .  .  . 

'  As  to  validity  of  buildiug-  regulations,  see,  generaHy,  note  93 
Am.    St.    Rep.    4  05. 

See  also   "Persons  Entitled,"   §§42-44,  post. 

^  Cal.  Const.  1879,  art.  xx,  §  15,   Henningr's  General  I.a^vs,  p.  civ. 

The  California  constitution  of  1849  did  not  provide  for  securing 
to  mechanics  or  material-men  a  lien  for  their  work  or  material; 
the  subject  was  left  to  the  wisdom  of  the  legislature:  Latson  v. 
Nelson    (Cal.),    H   Pac.   Coast  L.   J.   5S9. 

TliLs  subject  is  more  fully  developed  under  the  head  of  "  Persons 
Entitled,"   §§  42   et  seq.,   post. 

Constitutions  of  other  states.  The  constitution  of  North  Carolina, 
art.  xiv,  §  4,  also  provides  for  such  liens.  But  see  constitution  of 
Texas,  art.  xvi,  §  37,  and  constitution  of  Louisiana  of  1898,  art.  clxx.xv; 
and  see  also  Camp  v.  Mayer,  47  Ga.  414,  and  Stonewall  Jackson  L.  &  B. 
Assoc,  v.  McGruder,  43  Ga.  9,  decided  under  constitution  of  Georgia 
186S,    art.    i,    §  30. 


§  29  mechanics'  liens.  32 

Twenty-fourth  —  Authorizing  the  creation,  extension,  or 
impairing  of  liens."' ^  Although  it  has  been  intimated  in 
various  decisions  that  any  law  relative  to  mechanics'  liens 
derives  its  being  from  the  California  constitution,*  yet  it 
is  to  be  observed  that  some  of  the  liens  created  by  the 
California  Code  of  Civil  Procedure  ^  are  mentioned  in  the 
constitution,  and  others  are  not.  The  liens  of  material-men,® 
mechanics,  artisans,  and  laborers  of  every  class,  for  work  done 
or  materials  furnished  by  them  personally,  are  provided  for 
by  the  constitution.'^ 

A  lien  is  not  given  to  contractors  and  subcontractors,  as 
such,  by  the  constitution.  If  the  contractor  or  subcontractor 
personally  labors  in  the  erection  of  a  building  or  improve- 
ment, or  furnishes  materials  used  therein,  it  may  be  that 
he  would  have  a  lien,  under  the  constitution,  for  the  value 
of  such  labor  or  material,  but  it  would  not  be  given  by  virtue 
of  his  contract  or  to  the  amount  of  the  contract  price.  His 
right  to  a  lien  under  the  contract  is  given  solely  by  the 
statutory  provisions  in  his  behalf.  The  constitutional  man- 
datory liens  all  stand  upon  the  same  footing,  and  they  are 
equal  in  point  of  rank  with  regard  to  one  another.*  This 
constitutional  right  extends  to  the  value  of  all  labor  and 
materials  bestowed  or  furnished,  and,  under  the  statute, 
such  value  is  the  measure  of  the  recovery.® 

§  29.  Same.  Operation  of  the  constitution.  It  was  not 
the  intention  of  the  new  constitution  of  California  to  repeal 

'  Cal.  Const.   1879,   art.  iv,  §  25,  Henning's  General  I^aws.  p.   Ixxiii. 

*  For  Instance,  Builders'  Supply  Depot  v.  O'Connor  (Cal.  Sup.).  88 
Pac.  Rep.  982,  985;  Bennett  v.  Beadle,  142  Cal.  239,  242,  75  Pac.  Rep. 
843    (lien    on    vessel). 

»   Kerr's  Cjo.   Code  Civ.   Proc..  ?§  1183-1203a. 

«  Hughes  V.  Hoover,  3  Cal.  App.  145,  84  Pac.  Rep.  681.  And  see  Stim- 
son  M.  Co.  V.  Nolan  (Cal.  App.),  91  Pac.  Rep.  262  (laborer  and  material- 
man);   Linck  V.  Meikel.iohn,  2  Cal.  App.  506,  508,  84  Pac.  Rep.  309. 

'  Miltimore  v.  Nofziger  Bros.  L.  Co.  (Cal.  Sup.),  90  Pac.  Rep.  114; 
Hampton  v.  Christensen,  148  Cal.  729,  737,  84  Pac.  Rep.  200;  and  see 
Gibbs  V.  Tally,  133  Cal.  373.  377,  65  Pac.  Rep.  970,  60_L.  R.  A.  815. 

8  Miltimore  v.  Nofziger  Bros.  L.  Co.  (Cal.  Sup.,  April  2.  1907),  90 
Pac.  Rep.  114;  Stimson  M.  Co.  v.  Nolan  (Cal.  App.,  June  17,  1907),  91 
Pac.  Rep.   262. 

»  Stimson  M.  Co.  v.  Nolan  (Cal.  App.,  June  17,  1907),  91  Pac.  Rep.  262. 


33  CONSTITUTIONAL   ASPECTS  —  LAW   APPLICABLE.  §  29 

or  abrogate  the  law  giving  liens  to  mechanics  upon  real 
property,  then  found  in  the  California  Code  of  Civil  Pro- 
cedure.^" Such  law  was  preserved  in  full  force  and  effect 
by  the  present  constitution,  which  declares  "  that  all  laws 
in  force  at  the  adoption  of  this  constitution,  not  incon- 
sistent therewith,  shall  remain  in  full  force  and  effect  until 
altered  or  repealed  by  the  legislature."  ^^  The  mechanic's- 
lien  law  in  force  at  the  time  of  the  adoption  of  the  present 
constitution  was  not  in  conflict  but  in  harmony  with  it.^^ 

Constitution  not  self-executing.  But  the  provision  of  the 
constitution  under  consideration  ^^  is  not.  and  does  not 
profess  to  be,  self-executing ;  it  commands  legislation  on 
the  subject,^*  and  it  is  the  legislative  function  to  provide 
a  system  through  which  the  rights  guaranteed  may  be  exe- 
cuted and  carried  into  effeet.^^  Every  provision  of  the  laws 
which  the  legislature  may  enact  must  be  subordinate  to 
and  in  consonance  with  this  constitutional  provision.^®  which, 
however,  itself,  is  subordinate  to  the  declaration  of  rights 
contained  in  the  same  instrument. ^^ 

"  Kerr's  Cyc.  Code  Civ.  Proc.,  §§  1183-1199.  See  Germania  B.  &  L. 
Assoc.  V.  Wagner,  61  Gal.   349,   354. 

•'  Gal.  Gonst.,  art  xxii,  §  1,  Heuuing's  General   Ln^vs,  p.   cvi. 

"  Germania  B.  &  L.  Assoc,  v.  Wagner,  61  Cal.  349,  354.  See  Peck- 
ham  V.  Fox,    1   Cal.   App.   307,   308,   82    Pac.   Rep.    91. 

Shortly  after  the  present  constitution  was  adopted,  the  court  held 
that  it  was  not  intended  to  repeal  the  statute  theretofore  existing,  but 
to  continue  and  make  it  permanent,  witli  the  construction  it  had 
received,  and  that  it  was  not  intended  to  enlarge,  but  to  fix:  Latson 
V.  Nelson,  11  Pac.  Coast  L.  J.  589  (some  of  the  doctrines  of  this  case 
have   been   questioned   by   later    cases). 

See   also   "Law   Applicable,"    §§36-38,   post. 

'»  Cal.  Const.  1879,  art.  xx,  §  15,  Henning's  General  Laws,  p.  civ. 

"  Morse  v.  De  Ardo,  107  Cal.  622,  623,  40  Pac.  Rep.  1018;  Morris  v. 
Wilson,  97  Cal.  644,  646,  32  Pac.  Rep.  801;  Spinney  v.  Griffith,  98  Cal. 
149,   151,  32   Pac.   Rep.   974. 

In  the  case  last  cited  it  is  said  that  this  section  of  tiie  constitution 
Is  inoperative,  except  as  supplemented  by  legislation;  but  this  lan- 
guage seems  to  be  unfortunate,  and  opposed  to  tlie  cases  cited  therein, 
which  hold  that  the  legislation  in  force  at  the  adoption  of  tlie  con- 
stitution was  continued;  and  this  is  what  was  probably  intended  by 
the  court.  See  also  Continental  B.  &  L.  Assoc,  v.  Hutton,  1-14  Gal. 
609,  611,  78  Pac.  Rep.   21,  and  Camp  v.  Mayer,   47  Ga.   414. 

"  Hughes   V.   Hoover,    3    Gal.   App.    145,    84   Pac.   Rep.    681,    683. 

"  Hampton  v.  Christensen,  148  Cal.  729,  737,  84  Pac.  Rep.  200. 

"  Stimson   M.    Co.    v.   Braun,    136   Cal.    122,    125.    68    Pac.   Rep.    481.    89 
Am.   St.  Rep.   116,    57   L.   R.   A.   726.     But  see  Stimson  M.   Co.   v.   Nolan 
(Gal.  App.),   91   Pac.   Rep.    262. 
Mech.  Liens  —  3 


§§  30, 31  mechanics'  liens.  34 

§  30.  Raising  question  of  constitutionality.  In  raising 
the  question  of  the  constitutionality  of  tlie  statute  regulat- 
ing mechanics'  liens,  a  party  is  limited  solely  to  the  inquiry 
as  to  whether,  in  the  case  which  he  presents,  the  effect  of 
applying  the  statute  is  to  deprive  him  of  his  constitutional 
rights,  as  by  taking  his  property  without  due  process  of 
laAv.^®  He  has  no  right  to  assert  that  the  statute  is  uncon- 
stitutional because  it  may  be  construed  so  as  to  cause  it  to 
violate  a  provision  of  the  constitution.^® 

§  31.  Constitutionality  of  lien  statutes  generally.  Many 
attacks  have  been  made  upon  mechanie's-lien  statutes  -°  in 

IS  Ramish  v.  Hartwell,  126  Cal.  443,  451,  58  Pac.  Rep.  920,  foUowing 
CostiUo  V.  McConnico,  168  U.  S.  674,  680,  bk.  42  L.  ed.  622,  IS  Sup.  Ct. 
Rep.  229. 

Colorado.     See  GutshaU  v.  Kormaley    (Colo.),   88  Pac.  Rep.   158. 

1"  Ramish  v.  HartweU,  supra,  following;  CostiUo  v.  McConnico,  supra. 

Colorado.  Wliere  the  question  as  to  the  constitutionality  of  the 
act  was  not  raised  in  the  lower  court,  the  appellate  court  refused 
to  consider  it  for  the  first  time  on  appeal:  Miller  v.  Thorpe,  4  Colo. 
App.  559,  561,  36  Pac.  Rep.  891  (3  Mills's  Ann.  Stats.,  1st  ed.,  act  of 
1889,  §  2867),  the  objection  being  that  it  was  against  public  policy. 
Where  the  petition  for  the  writ  of  error  presents  solely  the  question 
of  the  validity  of  the  provision  of  the  act  allowing  attorneys'  fees, 
the  constitutionality  of  which  had  been  determined  by  the  court,  it 
was  held  that  nothing  was  involved  to  give  the  court  jurisdiction, 
and  the  writ  was  dismissed:  Campbell  v.  Los  Angeles  G.  M.  Co.,  28 
Colo.    256,    64    Pac.    Rep.    194. 

-"  Constitutionality    of    mechanic's-lien    laws    is    generally    upheld: 
See  Prince  v.  Neal-Millard  Co.,  124  Ga.  884,  4  Am.  &  Eng.  Ann.  Cas.  615. 
As  to  valid  niechanic'.s-lien  laws,  see  note  4   Am.   &  Eng.  Ann.   Cas. 
620. 

As  to  invalid  mechanic's-lien  laws,  see  note  4  Am.  &  Eng.  Ann. 
Cas.   621. 

The  California  act  of  1868  did  not,  because  it  failed  to  give  a  lien 
to  laborers  and  those  working  on  mining  claims,  violate  the  provisions 
of  the  constitution  of  1849,  requiring  that  "all  laws  of  a  general 
nature  shall  have  a  uniform  operation":  Quale  v.  Moon,  48  Cal. 
478,   482. 

Compare:  Cal.  Const.  1879,  art.  i,  §  11,  Hennlug's  General  Laws, 
p.    Ixvi. 

The  act  approved  March  29,  1S»7  (Stats.  1897,  p. '231),  giving  labor- 
ers employed  by  corporations  a  general  lien  on  all  the  property  of  a 
corporation  an  apparent  priority  over  other  liens  provided  for  in 
§§  1183-1203a  of  Kerr's  Cyc.  Code  Civ.  Proe.  has  been  declared  uncon- 
stitutional: Johnson  v.  Goodyear  M.  Co.,  127  Cal.  4,  10,  59  Pac.  Rep. 
304,   47   L.  R.   A.   338. 

A  previous  act  of  a  similar  nature  (Stats.  1891,  p.  195)  was  also 
held  unconstitutional:  Slocum  v.  Bear  Valley  Irr.  Co.,  122  Cal.  555, 
55  Pac.  Rep.  403,  68  Ani.  St.  Rep.  68;  Worden  v.  Bear  Valley  Irr.  Co.. 
55  Pac.  Rep.   1099.     See  Ackley  v.  Black  Hawk  G.  M.  Co.,   112   Cal.   42, 


35  CONSTITUTIONAL   ASPECTS  —  LAW   APPLICABLE.  §  31 

the  various  jurisdictions,  as  well  as  upon  other  statutes 
bearing  some  relation  to  them,-'   as  being  opposed  to   the 

44;  Keener  v.  Eagle  Lake  L.  &  I.  Co.,  110  Cal.  627,  631,  43  Pac.  Rep. 
14;    Spaulding  v.  Mammoth  Spring  M.  Co.   (Cal.),  49  Pac.  Rep.   183. 

Colorado.  See  Davis  v.  Mouat  L.  Co.,  2  Colo.  App.  381,  31  Pac.  Rep. 
187   (due  process  of  law).     As  to  the  constitutionality  of: 

Act  of  1883:  See  Sprague  Invest.  Co.  v.  Mouat  L.  &  L  Co.,  14  Colo. 
App.  107,  60  Pac.  Rep.  179,  181,  referring  to  s.  c.  7  Colo.  App.  152,  42 
Pac.  Rep.  1040;  Chicago  L.  Co.  v.  Dillon,  13  Colo.  App.  196,  56  Pac. 
Rep.   989,   990. 

Act  of  1889:  Chicago  L.  Co.  v.  Dillon,  supra;  Antlers  Park  Regent 
M.  Co.  V.  Cunningham,   29  Colo.  284.  68   Pac.  Rep.  226,  227. 

Stuts.  1S»03,  p.  315,  oh.  cxvii:  Chicago  L.  Co.  v.  Newcomb,  19  Colo. 
App.  265,  74  Pac.  Rep.  786,  789  (referring  to  the  California  statute  and 
Kellogg  V.  Howes,  81  Cal.  170,  22  Pac.  Rep.  509,  6  L.  R.  A.  5S8);  Joral- 
mon  V.  McPhee,  31  Colo.   26,   40,  71  Pac.  Rep.  419,   76  Pac.  Rep.   922. 

Constitutioiiality  of  thi.s  class  of  lej^islation  is  too  well  settled  to 
admit  of  discussion:  Church  v.  Smithea,  4  Colo.  App.  175,  35  Pac.  Rep. 
267    (1883). 

Courts  universally  uphold  it,  and  many  express  a  very  strong  con- 
viction regarding  its  propriety:  Church  v.  Smithea,  supra.  See  Turner 
V.  Robbins,  78  Ala.  592;  Wimberly  v.  Mayberry,  94  Ala.  240,  10  So.  Rep. 
157;  McAllister  v.  Clopton,  51  Miss.  257;  Cement  Co.  v.  Morrison,  13 
N.  J.  Eq.  133;  Brooks  v.  Burlington  &  S.  W.  R.  Co.,  101  U.  S.  443,  bk. 
25  L.  ed.  1057. 

As  to  such  statutes  being  special  or  class  legislation,  see  Rice  V. 
Carmichael,  4  Colo.  App.  86,  34  Pac.  Rep.  1010;  Anderson  v.  Bingham, 
1   Colo.   App.   222,   28   Pac.  Rep.   145. 

Washington.  The  law-making  power  may  put  such  restrictions 
upon  the  enforcement  of  such  statutes  as  it  chooses,  however  far  such 
restrictions  may  depart  from  the  established  rules  of  law,  so  long  as 
they  violate  no  constitutional  rights:  Marks  v.  Pence,  31  Wash.  426, 
71  Pac.  Rep.  1096.  See,  generally,  Kellogg  v.  Littell  &  S.  Mfg.  Co., 
1  Wash.   407,   410,   25  Pac.   Rep.   461. 

='  Stats.  1901,  ch.  cexii,  p.  641,  requiring  architects  to  be  certified, 
held  constitutional:  Ex  parte  McManus  (Cal.  Sup.),  90  Pac.  Rep.  702. 

Stats.  1897,  p.  231,  requiring  all  corporations  to  pay  employees  at 
least  once  a  month,  etc.,  held  to  be  in  violation  of  the  constitution  of 
California  and  the  constitution  of  the  United  States:  Johnson  v.  Good- 
year M.  Co.,  127  Cal.  4,  59  Pac.  Rep.  304,  47  L.  R.  A.  338. 

A.S  to  validity  of  statute  of  February  27,  1893  (Stats.  1893,  p.  33, 
Henning's  General  Laws,  p.  1311),  relating  to  street  assessments,  see 
Ramish  v.  Hartwell,  126  Cal.  443,  450,  58  Pac.  Rep.  920. 

Colorado.  Sess.  Laws  1899,  ch.  ciii,  restricting  hours  of  labor  in  a 
mine,  etc.,  held  unconstitutional:  In  re  Morgan,  26  Colo.  415,  58  Pac. 
Rep.   1071,   47  L.  R.  A.    52. 

Compare:   "Nevada"  and  "Washington,"   this  note. 

Montana.  Laws  1905,  ch.  1,  p.  105,  relating  to  employment  in 
mines  and  smelters,  held  constitutional:  State  v.  Livingston  C.  B.  &  M. 
Co.    (Mont.),   87  Pac.  Rep.   980. 

Utah.  Act  of  March  30,  1896,  providing  for  hours  of  employment 
in  mines,  etc.,  held  constitutional:  Hoklen  v.  Hardy,  169  U.  S.  366, 
42  L.  ed.  780,  IS  Sup.  Ct.  Rep.  383;  and  see  State  v.  Holden,  14  Utah 
71,  95,   46  Pac.  Rep.   762. 


§  31  mechanics'  liens.  36 

Federal  and  state  constitutions."  Thus  the  act  of  1868,-^ 
which  formed  the  basis  of  the  present  California  statute, 
was  attacked  as  unconstitutional  upon  the  following 
grounds:  That  it  attempts  to  appoint  agents  for  private 
persons ;  that  it  confiscates  property ;  that  it  attempts  to 
take  away  vested  rights  and  to  clothe  private  persons  with 
power  to  divest  citizens  of  their  property.  But  the  con- 
stitutionality of  the  statute,  as  against  these  objections,  was 
sustained.^* 

^  Nevada.  Act  of  February  23,  1903  (Stats.  1903,  ch.  x,  p.  33), 
Imposing  a  penalty  on  one  working  more  than  eight  hours  in  a  mine, 
etc.,  held  not  unconstitutional,  as  against  many  objections  urged:  Ex 
parte  Kair,  28  Nev.  425,  82  Pac.  Rep.  ■153,  80  Id.  463;  In  re  Boyce, 
27   Nev.    299,   75   Pac.   Rep.    1. 

W'asliington.  City  ordinance  making  eight  hours  a  day's  work,  not 
repugnant  to  the  fourteenth  amendment  of  the  constitution  of  the 
United  States,  nor  to  similar  provision  in  the  state  constitution:  In 
re  Broad,  36  Wash.  449,  78  Pac.  Rep.  1004,  70  L.  R.  A.  1011. 

Act  of  March  9,  1905,  amending  act  to  provide  for  the  payment  of 
wages  of  laborers  by  corporations  by  orders,  etc.,  amending  §  3305  of 
Ballinger's  Ann.  Codes  and  Stats.  (Laws  1905,  ch.  cxii,  p.  219),  held 
not  unconstitutional  as  depriving  a  person  of  property  without  due 
process  of  law:  Shortall  v.  Puget  Sound  Bridge  &  D.  Co.  (Wash.), 
88  Pac.   Rep.   212. 

The  employee's  act  of  1897,  held  constitutional:  Blumauer  v.  Clock, 
24  Wash.   596,   64   Pac.   Rep.    844,    85   Am.   St.   Rep.    966. 

A  city  ordiuance  prohibiting  laborers  from  ^vorking  more  than 
eigrht  hours  a  day  on  public  work,  held  unconstitutional,  as  interfer- 
ing with  the  constitutional  right  to  contract:  City  of  Seattle  v.  Smyth, 
22  Wash.  327,  60  Pac.  Rep.  1120,  79  Am.  St.  Rep.  939. 

Compare:  Ex  parte  Kuback,  85  CaL  274,  24  Pac.  Rep.  737,  20  Am. 
St.  Rep.  226,  9  L.  R.  A.  482. 

Laws  1893,  ch.  xxlv,  p,  32,  §  1,  that  part  relating  to  liens  for  "  pro- 
visions "  furnished,  held  unconstitutional:  Armour  v.  Western  Cons. 
Co.,   36  Wash.   529.   78  Pac.  Rep.   1106. 

Laws  1897,  p.  55,  §  1,  providing  for  general  liens  for  labor  done  for 
railway,  canal,  and  other  corporations,  held  constitutional:  Fitch  v. 
Applegate,   24  Wash.   25,   31,   64   Pac.   Rep.   147. 

As  to  the  constitutionality  of  Session  Laws  1895,  p.  142,  concern- 
ing drainage-ditches,  see  State  v.  Henry,  28  Wash.  38,  68  Pac.  Rep. 
368. 

*»  Cal.  Stats.   1868,   p.  589. 

»•  Hicks  v.  Murray,  43  Cal.  515,  521,  cited  in  Jon^s  v.  Great  South- 
ern F.  H.  Co..  86  Fed.  Rep.  370,  382,  30  C.  C.  A.  108,  58  U.  S.  App.  397, 
reversing  79  Fed.  Rep.  445,  447  (Cir.  Ct.),  193  U.  S.  532,  48  L.  ed.  778, 
24  Sup.  Ct.  Rep.  576  (statute  of  Ohio  held  constitutional").  See  Bragg 
V.  Shain,  49  Cal.  131,  134. 

In  a  case  previously  cited  (Kellogg  v.  Howes,  81  Cal.  170,  181,  22 
Pac.  Rep.  509,  6  L.  R.  A.  588),  in  his  concurring  opinion,  Mr.  Justice 
Fox  contended  that  the  opinion  of  the  majority  of  the  court  might  be 
construed  as  allowing  a  stranger  to  go  upon  the  land  of  a  non- 
resident  owner,   and,   through   laborers  and   material-men,   "improve" 


37  CONSTITUTIONAL   ASPECTS  —  LAW   APPLICABLE.  §  32 

§  32.  The  contractual  relation.  The  right  to  acquire, 
possess,  and  protect  property,  wliich  includes  the  right  to 
make  all  reasonable  contracts  in  respect  thereto,  is  guaran- 
teed by  the  constitution,  and  the  right  of  the  owner  is 
invaded  if  he  is  not  at  liberty  to  contract  with  others  respect- 
ing the  use  to  which  he  may  subject  his  property  and  the 
manner  in  which  he  may  enjoy  it.-^  Yet  the  legislature 
may  prescribe  the  form  in  which  contracts  between  the 
owner  and  the  contractor  shall  be  executed  and  published 
in  order  that  they  may  be  valid.-"  The  legislature  may 
require  the  recording  of  the  contract  as  a  condition  to  its 
valid ity,-''  and  may  forbid  any  payments  to  the  contractor, 
as  against  subclaimants,  unless  such  contract  is  so  recorded.-^ 
Such  requirements  are  not  unreasonable  interferences  with 
the  right  of  private  contract,  nor  restrictions  upon  the  owner 
in  regard  to  the  use  of  his  property,  or  in  reference  to  the 

him  out  of  hi.s  real  estate  without  his  knowledge.  He  said:  "The 
legislature  has  no  power  to  authorize  such  a  proceeding,  and  no  pre- 
cedent should  be  optablished  which  would  sanction  it.  No  person 
should  be  entitled  to  a  lien  or  personal  judgment  against  an  ow^ner  in 
any  case,  unless  he  contracted  the  liability  in  person,  or  it  be  shown 
that  he  had  actual  notice,  in  some  form,  of  the  fact  that  his  property 
was  being  improved  in  a  manner  w^hich  might  create  a  liability  or 
lien.  A  construction  of  the  statute  which  would  give  it  tlie  effect  of 
creating  a  lien,  where  the  owner  had  no  knowledge  of  the  improve- 
ment, would  render  it  unconstitutional."  But  in  that  case  there  was 
no  pretense  of  want  of  knowledge  by  the   owner. 

It  w^as  intimated  by  the  court  in  the  opinion  in  department  in  the 
case  of  Booth  v.  Pendola,  88  Cal.  36,  42,  23  Pac.  Rep.  200,  25  Pac.  Rep. 
1101,  24  Pac.  Rep.  714,  that  the  provisions  of  the  code,  as  they  stood 
In  1891,  had  been  held  constitutional  by  the  court. 

Colorado.  With  reference  to  the  act  of  1889,  see  Rice  v.  Car- 
michael,  4  Colo.  App.  84,  88,  34  Pac.  Rep.  1010. 

»  Snell  V.  Bradbury,  139  Cal.  379,  381,  73  Pac.  Rep.  150;  Stimson  M. 
Co.  V.  Braun,  136  Cal.  125,  68  Pac.  Rep.  481,  89  Am.  St.  Rep.  116,  57 
L.   R.   A.    726. 

Colorado.  Chicago  L.  Co.  v.  Newcomb,  19  Colo.  App.  265,  74  Pac. 
Rep.  786,  789  (Laws  1893,  ch.  cxvii,  p.  315).  See  also  Joralmon  v. 
McPhee,  31  Colo.  26,  71  Pac.  Rep.  419. 

2"  Stimson  M.  Co.  v.  Braun,  136  Cal.  122,  125,  68  Pac.  Rep.  481,  89 
Am.  St.  Rep.  116,  57  L.  R.  A.  726;  Gibbs  v.  Tally,  133  Cal.  373,  377, 
65  Pac.  Rep.  970,  60  L.  R.  A.  815;  Stimson  M.  Co.  v.  Nolan  (Cal.  App.), 
91  Pac.   Rep.  262. 

^  Kellogg  V.  Howes,  81  Cal.  170,  179,  22  Pac.  Rep.  509,  6  L.  R.  A, 
588;    Latson  v.  Nelson   (Cal.),  11  Pac.  Coast  L.  J.  589. 

See  "  Void  Contract,"  §§  286  et  seq.,  post,  and  "Notice,"  §  547.  post. 

»  Kellogg  V.  Howes,  81  Cal.  170,  179,  22  Pac.  Rep.  509,  6  L.  R.  A.  588. 


§  33  mechanics'  liens.  38 

power  to  make  contracts  concerning  the  same.-®  And  for 
this  reason  the  requirement  as  to  filing  the  original  con- 
tract, when  the  contract  price  exceeds  one  thousand  dollars, 
is  a  valid  exercise  of  the  legislative  power.^° 

§  33.     Same.     Valid  contract.     The  contract  being  valid, 

on  the  other  hand,  the  legislature  cannot  compel  the  owner 
to  pay  more  than  he  has  contracted  to  pay,^^  except  in  those 
cases  where  he  has  been  notified  of  the  claims  of  subcon- 
tractors before  payment  to  the  contractor,  which  notice  the 
owner  has  disregarded.^-  Nor  can  the  legislature  give  a 
lien  for  the  value  of  the  labor  or  materials,  irrespective  of 
the  contract  price,  under  a  valid  contract,^^  nor  limit  the  right 

»  Stimson  M.  Co.  v.  Braun,  136  Cal.  122,  125,  68  Pac.  Rep.  481,  89 
Am.  St.  Rep.   116,   57  L.  R.  A.  726. 

30  Stimson  M.   Co.  v.  Nolan   (Cal.  App.),   91   Pac.   Rep.   262. 

^  Stimson  M.  Co.  v.  Braun,  136  Cal.  122,  125,  68  Pac.  Rep.  481,  89 
Am.  St.  Rep.  116,  57  L.  R.  A.  726. 

Colorado.  See  Chicago  L.  Co.  v.  Newcomb,  19  Colo.  App.  265,  74  Pac. 
Rep.    786,   789. 

S2  Kellogg  V.  Howes,  81  Cal.  170,  179,  22  Pac.  Rep.  509,  6  U  R.  A.  588. 
See  also  Whittier  v.  Wilbur,  48  Cal.  175,  177,  in  which  the  objections 
raised  were  that  the  act  violated  the  inalienable  rights  of,  and 
unenumerated  rights  retained  by,  the  people,  and  that  no  state  shall 
deprive  any  person  of  property  without  due  process  of  law.  See 
Quale  V.  Moon,   48  Cal.   478,   481. 

"\VasIiinstou.  But,  under  §  1957,  Code  1881,  it  was  held  that  the 
statute  giving  a  lien  to  material-men,  notwithstanding  payment  to 
the  original  contractor,  was  constitutional  as  to  future  transactions: 
Spokane  Mfg.  &  Lumber  Co.  v.  McChesney,  1  Wash.  609,  21  Pac. 
Rep.    198. 

33  Stimson  M.  Co.  v.  Braun,  136  Cal.  122,  125,  68  Pac.  Rep.  481,  89 
Am.  St.  Rep.  116,  57  L.  R.  A.  726;  but  see  Stimson  M.  Co.  v.  Nolan 
(Cal.   App.),   91  Pac.   Rep.   262. 

Constitutional  requirement  applies  only  to  those  persons  enumer- 
ated, namely,  "  mechanics,  material-men,  artisans,  and  laborers  of 
every  class."  In  the  case  last  cited  it  was  said,  referring  to  the  cases 
of  Stimson  M.  Co.  v.  Braun,  supra,  and  Gibbs  v.  Tally,  133  Cal.  373, 
65  Pac.  Rep.  970,  60  L.  R.  A.  815:  "We  do  not  accept  either  of  these 
decisions  as  determinative  of  the  questions  here  invqlved.  Assuming, 
as  we  do,  the  validity  of  §  15,  art.  xx,  of  the  constitution  [Hennlng's 
General  I^aws,  p.  civ],  which  guarantees  the  lien,  we  find  that  this 
constitutional  right  of  the  laborer  and  material-man  extends  to  the 
full  value  of  all  labor  and  materials  bestowed  or  furnished;  and, 
without  legislation,  such  value  is  the  measure  of  recovery.  The 
legislature  has  seen  fit,  under  the  authority  given  it  by  the  consti- 
tution, to  provide,  by  the  sections  complained  of,  certain  conditions, 
upon  the  observance  of  which  the  constitutional  measure  of  lien  and 
recovery   is    restricted   to   the   sum   specified   in    the   contract   between 


39  CONSTITUTIONAL   ASPECTS  —  LAW   APPLICABLE.  §  34 

of  the  owner  and  the  contractor  to  incorporate  in  their  con- 
tract, otherwise  valid,  such  terms  as  may  be  mutually  satis- 
factory to  them.^* 

Under  the  principles  above  enunciated,  the  provision  of 
the  code  ^^  requiring  the  payments  to  be  in  money  was  held 
to  be  unconstitutional,  as  the  provision  is  an  infringement 
upon  the  right  of  the  owner  in  the  possession  and  enjoy- 
ment of  his  property,  such  method  of  payment  not  making 
the  original  contract  void.^® 

§  34.  Same.  Power  of  reputed  owner.  Estoppel.  While 
the  legislature  may  provide  that  the  real  owner  may,  by  his 
contract,  impose  a  lien  upon  his  property, ^^  a  merely  reputed 
owner  of  land  cannot  be  authorized  by  the  legislature, 
against  the  will  of  the  real  ow^ner,  to  create  a  lien  thereon, 
any  more  than  he  can  be  authorized  to  transfer  title  to  the 
same,  in  the  absence  of  estoppel,  equitable  or  statutory ;  ^* 

the  owner  and  the  contractor.  There  is  no  attempt  to  enlarge  the 
rights  of  lien  clairr^ants  under  any  circumstances,  for,  under  the  sec- 
tions mentioned,  where  a  valid  contract  is  made,  the  value  of  tlie 
thing  furnished  measures  the  extent  to  which  any  claim  can  be  found. 
The  effect,  therefore,  of  these  sections  is,  not  to  impair  any  existing 
right  of  the  owner,  but  in  effect  to  confer  a  right  not  previously 
existing  by  which  his  liability  may,  under  certain  circumstances,  be 
curtailed.  .  .  .  The  contract  by  the  owner  is  made  voluntarily,  and 
with  the  constitution  and  laws  in  mind,  and  they  form  part  of  such 
contract,  and  he  must  be  taken  to  have  consented  to  the  effect  of 
such  enactments";  and  the  court  held  that  the  argument  that  the 
law  might  have  the  effect  of  Increasing  the  necessary  cost  of  the 
structure  had  no  validity.  See  also  Ah  Louis  v.  Harwood,  140  Cal. 
500,   505,   74   Pac.   Rep.   41. 

3*  Stimson  M.  Co.  v.  Braun,  136  Cal.  122,  125,  68  Pac.  Rep.  481,  89 
Am.  St.  Rep.  116,  57  L.  R.  A.  726. 

5=  Kerr's   Cyc.   Code  Civ,   Proc,   §  1184. 

««  Stimson  M.  Co.  v.  Braun.  136  Cal.  122,  125,  68  Pac.  Rep.  481,  89 
Am.  St.  Rep.  116,  57  L.  R.  A.  726. 

3'  Santa  Cruz  R.  P.  Co.  v.  Lyons,  133  Cal.  114,  116,  65  Pac.  Rep.  329, 
117  Cal.  212,  48  Pac.  Rep.  1097,  59  Am.  St.  Rep.   174. 

Colorado.  The  original  contractor  being  the  agent  of  the  owner, 
under  the  statute,  the  latter  is  not  deprived  of  his  property  without 
due  process  of  law:  Chicago  L.  Co.  v.  Newcomb.  19  Colo.  App.  265, 
74    Par.   Rep.   786. 

AV]i.>4liin{;«oii.  Young  V.  Borzone,  26  Wash.  4,  66  Pac.  Rep.  421  (lien 
for  street-improvements,  under  2  Ballinger's  Ann.  Codes  and  Stats., 
§  5902). 

3"  Santa  Cruz  R.  P.  Co.  v.  Lyons,  117  Cal.  212,  48  Pac.  Rep.  1097,  59 
Am.   St.   Rep.   174,    133   Cal.   114,    116,   65   Pac.   Rep.   329. 


§  35  mechanics'  liens.  40 

and  an  attempt  to  authorize  the  creation  of  such  a  lien 
thereon,  by  virtue  of  a  contract  with  a  merely  reputed 
owner  to  make  an  improvement  on  the  street  adjacent 
thereto,  or  to  affect  the  interest  of  the  real  owner  therein, 
is  unconstitutional.^'* 

The  principle  of  estoppel,  equitable  or  statutory,  as  by 
failure  to  post  notice  of  non-responsibility,  when  required 
so  to  do  by  the  statute,  or  by  holding  out  the  reputed  owner 
as  the  real  owner,  may,  however,  be  invoked  to  prevent  the 
real  owner  from  questioning  the  acts  of  the  reputed  owner." 

§  35.  "  Impairing  obligation  of  contracts."  The  legisla- 
tures of  the  states  may  pass  laws  which  go  to  the  remedy 
on  past  as  well  as  on  future  contracts,  provided  they  do 
not  impair  their  obligation,  as  prohibited  by  the  constitu- 
tion of  the  United  States ;  *^  but  alteration,  by  law,  of  a 
remedy  to  such  an  extent  as  to  affect  materially  a  right 
vested  under  a  prior  contract  is  unconstitutional.  Thus 
where   an  indebtedness   existed   at  the   time   of  filing  the 

llntler  act  of  1868  (Stats.  1868,  p.  589,  §  4,  similar  to  §  1192,  Kerr's 
Cyo.  Code  Civ.  Proc.),  It  was  held  that  the  legislature  has  the  consti- 
tutional power  to  enact  a  law  to  bind  the  interest  of  the  owner  of 
the  land  upon  which  a  building  or  improvement  is  erected,  if,  upon 
obtaining  such  knowledge,  he  does  not  give  the  notice  of  non-liability 
prescribed  by  the  statute:  Fuquay  v.  Stickney,  41  Cal.  583,  587  (in 
this  case  the  owner  made  the  contract,  and,  of  course,  had  knowl- 
edge); Hicks  V.  Murray,  43  Cal.  515,  517,  521.  See  also  Donohoe  v. 
Trinity  Consol.  G.  &  S.  Min.  Co.,  113  Cal.  119,  123,  45  Pac.  Rep.  259; 
Jurgenson  v.  Diller,  114  Cal.  491,  492,  46  Pac.  Rep.  610,  55  Am.  St.  Rep. 
83;    Lowe  v.  Woods,  100  Cal.  409,  412. 

Compare:  Church  v.  Garrison,  75  Cal.  199,  16  Pac.  Rep.  885,  and 
Lambert  v.  Davis,  116  Cal.  292,  48  Pac.  Rep.  123  (under  the  threshing- 
machine  act  (Stats.  1885,  p.  109),  and  also  Taylor  v.  Hill,  115  Cal.  143, 
44  Pac.  Rep.  336,  46  Id.  922,  in  reference  to  §§  1206  and  1207.  Kerr's 
Cyc,  Code  Civ.  Proc;  and  compare  §§  1206  and  1207,  Id.,  as  to  "reputed 
owner." 

Oregon.  See  Title  G.  &  T.  Co.  v.  Wrenn,  35  Oreg.  62,  56  Pac.  Rep. 
271,  76  Am.   St.  Rep.   454. 

^  Santa  Cruz  R.  P.  Co.  v.  Lyons,  117  Cal.  212,  213,  48  Pac.  Rep. 
1097,  59  Am.  St.  Rep.  174  (§  1191.  Kerr's  Cyc.  Code  Civ.  Proc,  held 
unconstitutional,  so  far  as  authorizing  a  merely  reputed  owner  to 
create  liens  upon  the  land  for  street-improvements). 

Idaho.  And  so  a  person  unlawfully  in  possession  cannot  deprive 
the  owner  of  his  property:  Idaho  Gold  M.  Co.  v.  Winchell,  6  Idaho 
729,   59   Pac.   Rep.   533,   96  Am.   St.   Rep.   290. 

*"  See    notes    to    §§  28    et   seq.,    ante. 

*^  Art.  i,  §  10,  Hennins's  General  Laws,  .p.  xx. 


41  CONSTITUTIONAL    ASPECTS  —  LAW   APPLICABLE.  §  36 

claim,  it  was  held  that,  where  no  lien  was  provided  for 
work  upon  a  canal  under  the  statute  of  1850,  the  legislature 
could  pass  an  act  providing  for  such  lien  after  the  contract 
was  entered  into.  The  court  say :  "  It  is  difficult  to  per- 
ceive how  an  act  which  gives  an  additional  remedy  to  the 
holder  of  a  contract  can  be  said  to  impair  its  obligation."  *- 
And  where  the  materials  are  furnished  before  an  amend- 
ment of  the  law  shortening  the  time  within  which  a  claim 
must  be  filed,  there  is  no  impairment  of  the  obligation  of 
the  contract,  provided  an  adequate  and  valuable  remedy  be 
left ;    such  a  law  is  not  retroactive*^ 

§  36.  Retrospective  laws.  The  subject  of  retrospective 
laws  is  closely  akin  to  that  of  the  impairment  of  the  obli- 
gation of  contracts,  already  considered.^*  The  California 
cases  cannot  be  said  to  be  clear  on  this  subject.  In  a  recent 
case,  however,  in  which  the  question  involved  was  an  amend- 
ment to  the  law  affecting  one  of  the  elements  creating  the 
f 

*'■'  Gordon  v.  South  Fork  C.  Co.,  1  McAl.  513,  10  Fed.  Gas.,  p.  817, 
appealed  to  supreme  court  and  affirmed  on  this  point,  but  reversed 
as  to  extent  of  lien:  South  Fork  C.  Go.  v.  Gordon,  73  U.  S.  (6  Wall  ) 
561,    18   L.    ed.   894. 

Colorado.  See  Woodbury  v.  Grimes,  1  Colo.  100,  in  which  it  was 
held  that  the  repeal  of  an  act  allowing  a  lien  was  not  unconstitu- 
tional (1864).  But  see  Spangler  v.  Green,  21  Colo.  505,  42  Pac.  Rep. 
674,  52  Am.  St.  Rep.  259,  in  which  it  was  held  that  when  the  rights 
of  parties  to  a  building  contract  accrued  under  an  agreement  made 
before  the  passage  of  amendments,  whereby  their  contract  rights 
were  materially  impaired,  the  law  in  force  at  the  time  the  rights 
accrued,  and  not  the  amendments,  must  govern;  Small  v.  Folev  8 
Colo.  App.  435,  449,  47  Pac.  Rep.  64;  Orman  v.  Crystal  R.  R.  Co.,  5 
Colo.  App.  493,  39  Pac.  Rep.  434  (time  within  which  suit  must  be 
brought  may  be  changed).  See  Chicago  L.  Co.  v.  Dillon,  13  Colo.  App. 
196,   56  Pac.  Rep.    989,   990. 

Nevada.  See  Capron  v.  Strout,  11  Nev.  304;  Skyrme  v.  Occidental 
M.  &  M.  Co.,  8  Nev.  219;  Hunter  v.  Savage  Consol.  M.  Co.,  4  Nev, 
647;    Sabin  v.  Connor,   21  Fed.  Cas.,  p.  124. 

^Vasllington.  See  Hopkins  v.  Jamieson-Dixon  M.  Co.,  11  Wash. 
308.  39  Pac.  Rep.   815. 

"  Kerckhoff-Cuzner  M.  &  L.  Co.  v.  Olmstead,  85  Cal.  80,  84.  24 
Pac.  Rep.  648.  See  Shuffleton  v.  Hill.  62  Cal.  483,  6  West  Coast  Rep. 
436   (lien  on  logs;    syllabus  misleading). 

Oregon,     See  W^illamette  P'alls  T.  &  M.  Co.  v.  Riley,   1  Greg.   183. 

As  to  retroaetlve  la^ts,  see  §  36,  post. 

"  §  35,  ante.  See,  generally,  notes  6  Am.  Dec,  730;  10  Am.  Dec.  131; 
10  L.   R.  A.  407;     12  L.  R.  A.  50. 


§  36  mechanics'  liens.  42 

inchoate  right  to  tlie  lien,  it  was  held  that  the  rights  of 
claimants  are  governed  by  the  law  in  force  at  the  time  the 
work  was  done  and  claim  of  lien  filed. ■*'^ 

Where  a  contract  was  made  and  materials  were  furnished 
while  a  certain  lien  law  was  in  force,  but  the  notice  of  lien 
was  not  filed  in  the  recorder's  office  until  after  a  subsequent 
lien  law  went  into  effect,  the  court  held  that  the  lien  was 
not  lost,  but  that  it  must  be  enforced  in  accordance  with 
the  provisions  of  the  later  act.  In  the  second  act  there 
was  a  saving  clause:  "Nothing  contained  in  this  act  shall 
be  deemed  to  apply  to  or  affect  any  lien  heretofore 
acquired."  **'  Until  the  claim  was  filed  there  was  simply  a 
right  to  a  lien,  and  the  lien  had  not  yet  been  "  acquired  " 
(although  this  point  was  not  specifically  noticed  in  the  case 
referred  to)  ;  yet  the  court  held  *'^  that  "  after  the  new  stat- 
ute went  into  eft'ect,  all  subsequent  acts  and  proceedings 

«  Higgins  V.  Carlotta  G.  M.  Co.,  148  Cal.  700,  703,  84  Pac.  Rep. 
758,   113  Am.  St.  Rep.  344. 

E^xtension  of  the  statutory  agency  by  the  amending  act  was  the 
question  involved  in  above  case.  As  to  the  same  point,  see  Jones  v. 
Kruse,   138  Cal.  613,   614,  616,  72  Pac.  Rep.   146. 

Colorado.  In  order  to  determine  whether  or  not  a  claimant  is 
entitled  to  a  lien,  we  must  go  back  to  the  statute  in  force  at  the 
time  the  contract  ■was  entered  into,  and  where  such  contract  does 
not  relate  to  the  persons  who  may  assert  liens,  or  to  the  property 
against  which  they  may  be  enforced  under  the  law  in  force  at  the 
time  of  the  execution  of  the  contract,  a  subsequent  amendment  allow- 
ing a  lien  for  work  performed  under  a  similar  contract  does  not 
give  a  lien  for  labor  done  under  such  contract,  as  it  is  to  be  governed 
by  the  law  in  force  at  the  time  of  its  execution:  Griffin  v.  Seymour, 
15  Colo.  App.  487,  63  Pac.  Rep.  809  (continuous  contract  of  monthly 
employment). 

«  Act  of  April  26,  1862,  §  24;    Stats.  1864,  p.  390. 

"  McCrea  v.  Craig,  23  Cal.  522,  525,  where  it  was  said  that  "  the  lien 
virtually  commences  when  the  labor  or  materials  are  begun  to  be 
furnished,  .  .  .  and  the  lien  is  deemed  to  have  accrued  at  the  time  of 
the  commencement  of  the  work  or  the  beginning  of  furnishing  the 
materials."     See  Ellison  v.  Jackson  W.  Co.,  12  Cal.  542,  554. 

See   "  Priorities,"   §§  486   et  seq.,  post. 

Colorado.  Same  principle  as  to  statement  under  acts  of  1883  and 
1889:  Sayre-Newton  L.  Co.  v.  Union  Bank,  6  Colo.  App.  541,  550,  41  Pac. 
Rep.   844. 

Where  a  ilotible  liability  would  be  imposed  upon  the  owner,  see 
Mouat  L.  Co.  V.  Gilpin,  4  Colo.  App.  534,  536,  36  Pac.  Rep.  892  (1889). 

The  act  of  1864  was  repealed  by  the  act  of  1867,  and  all  existing 
liens  were  lost,  unless  within  the  clause  of  the  latter  act  saving 
pending  proceedings:    Woodbury  v.  Grimes,  1  Colo.  100. 


43  CONSTITUTIONAL   ASPECTS  —  LAW   APPLICABLE.  §  36 

relating  to  the  lien  or  its  enforcement  were  governed  by, 
and    must    have    been    in    accordance    with,    its    provisions." 

Act  of  1868  was  repealed  by  the  act  of  1872,  and  liens  under  the 
former  fell:    Purmort  v.  Tucker  L.  Co.,  2  Colo.  470. 

Uniler  saving  clause  of  act  of  1893,  where  a  right  to  a  lien  existed 
before  the  statute  went  into  effect,  it  was  not  affected:  Bitter  v.  Mouat 
L.  &  I.  Co.,  10  Colo.  App.  307,  51  Pac.  Rep.  519;  Small  v.  Foley,  8  Colo. 
App.  435,  47  Pac.  Rep.  64   (statement). 

Contra:  Where  the  right  had  not  accrued:  Bitter  v.  Mouat  L.  &  I.  Co., 
supra;  Orman  v.  Crystal  R.  R.  Co.,  5  Colo.  App.  493,  39  Pac.  Rep.  434; 
Chicago  L.  Co.  v.  Dillon,  13  Colo.  App.  196,  56  Pac.  Rep.  989  (1893,  3 
Mills's  Ann.  Stats.,  1st  ed.,  §  2867).  See  Sprague  Invest.  Co.  v.  Mouat  K 
&  I.  Co.,  14  Colo.  App.  107,  60  Pac.  Rep.  179   (1889  and  1893). 

As  to  ri^fht  to  lien,  nature  of  improvement,  and  use  of  materials,  see 
Michael  v.  Reeves,  14  Colo.  App.  460,  6.0  Pac.  Rep.  577. 

One  doing  worlt  as  a  subcontractor  on  a  structure  under  a  contract 
executed  before  the  mechanic's-lien  law  of  1899  went  into  effect, 
should  have  perfected  his  lien  under  the  law  of  1893:  Tabor  Pierce  L. 
Co.  V.  International  T.  Co.,  19  Colo.  App.  108,  75  Pac.  Rep.  150;  and  see 
Spangler  v.  Green,  21  Colo.  505,  42  Pac.  Rep.  674,  52  Am.  St.  Rep.  259. 

IJen  on  mines.  Working  by  lessees.  Where  the  law  (Laws  1893, 
p.  321),  after  allowing  a  lien  to  all  persons  performing  labor  or  fur- 
nishing materials  in  the  working  of  a  mine,  provided  that  the  statute 
should  not  be  applicable  to  the  owners  of  any  mine  "  when  the  same 
shall  be  worked  by  lessee  or  lessees,"  the  amendment  of  April  13,  1895, 
materially  modifying  that  proviso,  must  be  held  to  apply  only  to  leases 
made  after  that  date,  since  otherwise  the  retroactive  operation  would 
be  contrary  to  the  express  inhibition  of  §  11,  art.  ii,  of  the  constitution 
of  Colorado:  United  M.  Co.  v.  Hatcher,  79  Fed.  Rep.  517,  25  C.  C.  A.  46, 
49  U.  S.  App.  139. 

Oregon.  Where  the  contractor  entered  into  a  contract  while  the 
act  of  1851  was  in  force,  and  continued  to  work  until  after  the  act  of 
1854  was  passed  repealing  the  former  without  any  saving  clause,  the 
latter  act  was  regarded  as  a  continuation  of  the  former;  the  labor  in 
question  was  regarded  as  an  entirety,  and  the  rights  of  the  contractor 
determined  in  accordance  with  the  law  in  force  at  the  time  the  con- 
tract was  made,  but  such  rights  were  to  be  established  and  enforced 
by  the  law  existing  at  the  time  of  bringing  the  suit:  Willamette  Falls 
T.  &  M.  Co.  V.  Riley,  1  Oreg.  183. 

Wliere  the  uiechanic's-Iien  statute  of  1874  was  repealed  by  anotlier 
statute,  which  gave  a  similar  lien,  but  provided  that  nothing  contained 
therein  should  affect  any  lien  theretofore  acquired,  and  that  the  same 
should  be  enforced  under  the  repealing  act  of  1885,  and  the  labor  and 
material  were  furnished  while  the  act  of  1874  was  in  force  and  at  the 
time  of  the  repeal  and  thereafter,  and  the  persons  furnishing  the  same 
would  have  had  such  lien,  limited  by  the  original  contract  price,  or 
any  instalment  thereof  to  become  due  thereon  according  to  the  con- 
tract, by  giving  notices  in  writing  to  the  employer  of  the  nature  and 
extent  of  their  claims  against  the  contractor,  and  such  repeal  and 
enactment  of  the  new  statute  occurred  before  a  deferred  payment 
became  due,  although  no  notice  had  been  given,  the  lien  provided 
in  the  repealing  act  might,  under  its  provisions,  attach  for  the  benefit 
of  such  claimants,  limited  by  such  instalment.  Since  the  later  act  did 
not  require  a  written  notice,  the  lien  would  attach  without  it:  Ainslie 
V.  Kohn,  16  Oreg.  363,  19  Pac.  Rep.  97. 


§  36  mechanics'  liens.  44 

And  the  same  rule  was  applied  with  reference  to  the  time 
of  filing  the  claim  of  lien.**     But  Avhere   a  lien  had  been 

Xevada.  A  substantial  re-enactment  of  prior  laws,  somewhat  modi- 
fled,  repealing  the  same  in  direct  terms,  tlie  intention  to  preserve 
rights  acquired  under  the  old  law^s  and  to  consolidate  and  extend 
them  being  clear,  will  be  considered  as  a  continuance  of  such  laws. 
The  statute  in  existence  at  the  time  of  the  performance  of  the  labor, 
giving  a  right  to  a  lien  for  the  same,  and  a  right  to  an  action  to 
enforce  it,  is  part  of  the  contract,  and  the  repeal  of  the  statute  does 
not  affect  the  right  to  the  lien  or  the  action  to  enforce  it:  Sabin  v. 
Connor,  21  Fed.  Gas.,  p.  124. 

Utah.  Similar  principle  to  "Willamette  Falls  T.  &  M.  Co.  v.  Riley, 
1  Oreg.  183,  in  Garland  v.  Bear  L.  &  R.  W.  W.  Irrigation  Co.,  9  Utah 
350,  34  Pac.  Rep.  368,  it  being  held,  however,  that  the  lien  came  into 
existence  w^hen  the  material  was  furnished  (acts  of  1888  and  1890) ; 
afiirme<l  in  Bear  L.  &  R.  Water  Go.  v.  Garland,  164  U.  S.  1,  41  L.  ed. 
327,  17  Sup.  Gt.  Rep.  7. 

AVasIiinjarton.  Where  §  19,  Laws  1893,  p.  32  (Ballinger's  Ann.  Codes 
and  Stats.,  §  5918),  repealed  all  prior  conflicting  laws,  and  provided  that 
"  all  rights  acquired  under  any  existing  law  of  this  state  are  hereby 
preserved,  and  all  actions  now  pending  shall  be  proceeded  with  under 
the  law  as  its  exists  at  the  time  this  act  shall  take  effect,"  it  author- 
ized the  procedure  under  the  former  law  merely  for  those  actions 
begun  prior  to  the  taking  effect  of  the  act  of  1893.  'Rights  accruing 
before  the  taking  effect  of  the  act  of  1893,  for  the  enforcement  of 
which  actions  were  instituted  subsequent  thereto,  w^ere  governed  by 
the  mode  of  procedure  provided  in  the  act  of  1893,  and  the  right  to  a 
lien  when  the  labor  had  been  performed  was  preserved  by  this  sec- 
tion: Hopkins  v.  .lamieson-Dixon  M.  Co..  11  W^ash.  308,  39  Pac.  Rep. 
815.  See  Garneau  v.  Port  Blakeley  M.  Co.,  8  Wash.  467,  36  Pac. 
Rep.  463. 

"  The  rights  of  partiess  under  meehanic's-lien  laws  are  to  be  ascer- 
tained and  fixed  by  the  law  in  force  when  the  contract  w^as  made; 
but  such  rights  are  to  be  established  and  enforced  by  the  law  existing 
at  the  bringing  of  the  suit."  "Where  a  right  existed  under  the  old 
law,  —  and  most  of  the  cases  are  with  reference  to  questions  of 
limitation, —the  right  would  not  be  curtailed  by  the  provisions  of  the 
new  law":  Hopkins  v.  Jamieson-Dixon  Co.,  11  Wash.  308.  312,  39  Pac. 
Rep.  815,  reviewing  a  number  of  cases,  and  citing  McCrea  v.  Craig,  23 
Gal.  522.  525,  with  approval.  The  case  urges  as  an  objection  that 
there  would  otherwise  be  two  procedures  for  the  enforcement  of  liens 
at  the  same  time;  "  a  portion  of  them  proceeding  under  the  old  act, 
and  a  portion  under  the  new,  a  condition  in  the  practice  which  cannot 
be  justified  by  anything  but  the  plain  provisions  of  the  law  author- 
izing it." 

Mechanio's-Iien  law  of  1.S77  was  intended  as  a  substitute  for  that  of 
1873,  and,  under  the  law  of  1877,  liens  or  rights  accrued  and  actions  or 
proceedings  commenced  under  the  old  law  were  fully  kept  alive  by 
the  new;  but  the  old  law  itself  was  repealed;  and  it  was  held,  as  to 
the  time  of  filing  the  claim  of  lien,  that  every  proceeding  to  enforce 
a  right  accruing  under  the  later  statute  must  conform,  as  far  as 
practicable,  to  the  requirements  of  the  new  law:  Seattle  &  W.  W.  R. 
Co.  V.  Ah  Kowe,  2  Wash.  Ter.  36.  3  Pac.  Rep.  188. 

«  Kerckhoff-Cuzner  M.-  &  L.  Co.  v.  Olmstead.  85  Gal.  80,  84,  24  Pac. 
Rep.  648  (amendment  of  March  15,  1887,-  to  §  1187,  Kerr's  Cyc.  Code 
Civ.  Proo.).     See  Tuttle  v.  Block,  104  Gal.  443,  449,  38  Pac.  Rep.  109. 


45  CONSTITUTIONAL   ASPECTS  —  LAW   APPLICABLE.  §  37 

acquired,  and  the  statute  *"  subsequently  enacted  provided 
that  nothing  contained  in  the  act  should  be  deemed  to  apply 
to  or  affect  any  lien  theretofore  acquired,  a  provision  in 
the  latter  law  allowing  extensions  of  time  to  foreclose  the 
lien  appears  to  have  been  held  to  apply  only  to  subsequent 
and  not  to  existing  liens."'' 

§  37.  Same.  Homestead.  Priorities.  As  the  statute 
regarding  homesteads  originally  stood  in  this  state,  no  pro- 
vision was  made  for  a  mechanic's  lien  thereon,  and  no  such 
lien  could  be  enforced  against  a  homestead. ^^  By  the  amend- 
ment to  the  code  passed  in  1887  ■'-  this  was  changed  by  a- 
specific  provision  for  a  mechanic's  lien  on  homesteads. ^^ 
Under  this  amendment,  materials  furnished  prior  to  the  stat- 
ute may  become  the  basis  of  a  lien  under  the  statute ;  there 
is  no  constitutional  bar  to  such  a  lien,  as  the  statute  does 
not  affect  the  contract,  but  merely  takes  away  the  right  of 
the  homestead  claimant  to  defeat  a  just  claim  against  his 
property.^* 

Where  homestead  not  subject  to  mechanic's  lien,  a  ma- 
terial-man who  enters  into  a  contract  to  furnish  materials 
for  the  improvement  of  property  before  it  is  impressed  with 
the  character  of  a  homestead  cannot  be  defeated  of  his 
right  to  a  lien  by  subsequently  filing  a  declaration  of  home- 
stead covering  the  property  on  which  the  improvement  is 
made  or  is  to  be  made,  because  the  lien,  or  the  right  to 
the  lien,  relates  to  the  time  of  furnishing  the  material,  and 
at  that  time  the  homestead  did  not  exist. '^^ 

"  Act  of  April   27,   1855,   Stats.   1855,   p.    159,  §  12. 

"o  See  Gamble  v.  Voll,   15  Cal.  508,  509. 

"  Kerr's  Cyc.  Civ.  Code,  §  1241,  and  note.  See  Richards  v.  Shear, 
70  Cal.  1S7,   11  Pac.  Rep.  607. 

As  to  honieistead,  see  §  468,  post. 

f'-  Act  of  March  9,  1887,  Stats,  and  Amdts.  1887,  p.  81. 

03  Davies-Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641,  649,  22  Pac. 
Rep.  860. 

"  Davies-Hendor.son   L.  Co.  v.  Gottschalk,  supra. 

Joint  in'tion  of  iiii.sbniid  and  «lfe  not  necessary  to  create  mechanic's 
lien  on  homestead:  I'almer  v.  Lavigne,  104  Cal.  30,  34,  37  Pac.  Rep.  775. 

"  Davies-Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641,  648,  22  Pac. 
Rep.  860. 

Compare:  Townseiid  v.  Wild,  1  Colo.  10   (1861). 


§  38  mechanics'  liens.  46 

§  38.  Repeals.  Repeals  by  implication  are  not  favored, 
and  cannot  be  ejffected  by  a  provision  which  is  devoid  of 
constitutional  force,  and  the  provisions  of  an  amended  sec- 
tion, which  are  copied  without  change,  are  not  to  be  con- 
sidered as  repealed  and  again  re-enacted,  but  to  have  been 
continued  as  the  law.^®  The  direct  repeal  of  an  act  repeals 
also  all  amendments  of  that  act.  Thus  where  an  act  gave 
mechanics'  liens  only  upon  buildings  and  wharves,  and  a 
subsequent  act  extended  the  former  act  so  as  to  include 
in  its  provisions  bridges,  ditches,  flumes,  and  aqueducts 
constructed  to  create  hydraulic  power  or  for  mining  pur- 
poses, and  the  former  act  was  repealed  b.y  a  third  and  later 

See  this  subject  further  discussed  under  the  head  of  "  Extent  of 
Lien,"  §§  468,  493-,  post. 

Utah.  In  the  absence  of  an  express  contract  creating  a  lien  in 
favor  of  a  contractor,  a  decree  requiring  a  sale  of  tlie  homestead  to 
satisfy  a  judgment  foreclosing  a  material-man's  lien  for  materials 
furnished  for  improving  the  same  is  based  only  on  the  statute,  and 
is  an  execution,  within  §  1,  art.  xxii,  of  the  constitution,  providing 
that  the  legislature  shall  provide  for  the  selection  of  a  homestead  to 
be  exempt  from  execution  sale,  and  the  provision  of  §  1156,  Rev.  Stats. 
18S9,  that  the  homestead  may  be  sold  to  satisfy  judgments  foreclosing 
mechanics'  liens  for  work  done  in  improving  the  same,  is  in  conflict 
with  this  section  of  the  constitution:  Volker-Scowcroft  L.  Co.  v. 
Vance   (Utah),  88  Pac.  Rep.  896. 

Compare:  Cal.  Const.  1879,  art.  xvii,  §  1,  Henningr's  General  Laws, 
p.   cii. 

As  to  doctrine  of  instantaneous  seiscin  and  priority  of  mechanic's 
lien  over  mortgage  given,  not  as  a  part  of  the  purchase  price  of  the 
land,  title  to  which  was  acquired  after  entering  into  the  contract  for 
the  improvement,  but  to  raise  money  with  which  to  erect  building, 
see  note  7  Am.  &  Eng.  Ann.  Cas.  624.  See  also  14  L.  R.  A.  307  (supe- 
riority  over  mortgage   for   advances). 

56  Santa  Cruz  R.  P.  Co.  v.  Lyons.  133  Cal.  114,  117,  65  Pac.  Rep.  329, 
as  to  the  construction  of  §  1192.  Kerr's  Cye.  Code  Civ.  Proc.,  relating 
to  lien  on  lots  for  street-improvements,  etc.,  held  that  the  same  was 
not    repealed  by  an   unconstitutional   amendment. 

As  to  repeal  by  iniplieation,  see  Kerr's  Cyc.  Code  Civ.  Proc.,  §  18, 
and   note   pars.    3-21. 

Oregon.  Repeals  by  implication  are  not  favored  in  law,  and  two 
acts  in  pari  materia  stand  together,  and  are  given  effect,  if  practicable 
and  possible.  Under  these  rules,  the  general  mechanic's-lien  law  of 
Oregon  (Laws  1885,  p.  13),  as  applicable  to  railroads,  was  not  repealed 
by  implication  by  the  later  act,  which  gives  a  lien  also  to  a  class  of 
creditors  not  included  within  the  terms  of  the  original  act,  and  pro- 
vides a  different  procedure  for  their  enforcement  (Laws  1889,  p.  75). 
Both  statutes  may  be  sustained,  as  giving  to  the  persons  enumerated 
in  the  first  statute  a  cumulative  remedy  as  against  railroads:  Ban  v. 
Columbia  S.  R.  Co..  117  Fed.  Rep.  21,  29,  54  C.  C.  A.  407.  reversing  s.  c. 
109    Fed.    Rep.    499. 


47  CONSTITUTIONAL    ASPECTS LAW    APPLICABLE.         §§39,40 

act,  it  was  held  that  the  repeal  carried  with  it  the  supple- 
mentary act,  which  extended  the  provisions  of  the  original 
act.^^ 

§  39.  Contractor's  bond.  There  is  no  constitutional  pol- 
icy back  of  the  provision  in  the  California  code  requiring 
the  filing  of  a  bond  with  the  recorder ;  ^^  and  although  the 
provision  had  been  upheld  as  against  several  constitutional 
objections,^"  yet  it  was  subsequently  determined  to  be  uncon- 
stitutional, both  as  against  the  owner  and  the  contractor, 
as  making  a  discrimination,  and  also  as  being  an  unreason- 
able restraint  on  the  right  to  contract,  founded  on  no  nat- 
ural, inherent,  or  constitutional  distinction. "^^ 

§  40.  Attorneys'  fees  and  costs.  The  provision  in  the 
California  code  concerning  the  allowance  of  attorneys'  fees 

"  EUison  V.  Jackson  W.  Co.,  12  Cal.  542,  554.  Without  the  original 
act  there  was  no  mode  of  enforcing  the  supplementary  act.  The  lat- 
ter was  so  dependent  upon  the  former  as  to  become  utterly  inoperative 
upon  the  repeal;  affirmed  in  Horn  v.  Jones,   28  Cal.   195,  204. 

As  to  repeal  and  revision  generally,  see  Kerr's  Cyc.  Code  Civ. .Proc., 
§  IS,   and  note  pars.   22-32. 

Colorado.  Where  material  was  furnished  before  the  act  allowing 
a  lien  was  passed,  no  lien  was  allowed:  Townsend  v.  Wild,  1  Colo. 
10   (1861). 

Compare:  Davies-Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641,  648, 
22   Pac.   Rep.   860. 

=s  Kerr's  Cyc.  Code  Civ.  Proc.,  §1203;  see  Gibbs  v.  Tally,  133  Cal. 
373,  377,  65  Pac.  Rep.  970,  60  L.  R.  A.  815. 

^^  Upheld  as  containing  in  the  title  a  sufficient  statement  of  the 
subject  of  the  act,  and  as  not  being  a  special  law:  Mangrum  v.  Trues- 
dale,  128  Cal.  145,  60  Pac.  Rep.  775;  Carpenter  v.  Furrey,  128  Cal.  665, 
668,  61  Pac.  Rep.  369;  Deyoe  v.  Superior  Court,  140  Cal.  476,  489,  74 
Pac.  Rep.  28,  98  Am.  St.  Rep.  73.  See  Gibbs  v.  Tally,  133  Cal.  373, 
65    Pac.  Rep.   970,   60  L.  R.  A.   815. 

Wasliington.  As  to  act  of  1893,  eh.  xxiv,  p.  32,  requiring  bond  from 
railroad  contractor,  being  unconstitutional,  see  Armour  v.  Western 
Const.  Co.,  36  Wash.  529,  78  Pac.  Rep.  1106;  Laidlaw  v.  Portland 
V.  &  Y.  R.  Co.,  42  Wash.  292,  84  Pac.  Rep.  855. 

'"  San  Francisco  L.  Co.  v.  Bibb,  139  Cal.  192,  194,  72  Pac.  Rep.  964, 
139  Cal.  325,  73  Pac.  Rep.  864;  W.  W.  Montague  Co.  v.  Furness,  145 
Cal..  205,  78  Pac.  Rep.  640;  Shaughnessy  v.  American  Surety  Co.,  138 
Cal.  543,  69  Pac.  Rep.  250,  71  Id.  701;  Gibbs  v.  Tally,  133  Cal.  373,  65 
Pac.  Rep.  970,  60  L.  R.  A.  815;  Snell  v.  Bradbury,  139  Cal.  379,  380.  73 
Pac.  Rep.  150;  Hampton  v.  Christensen,  148  Cal.  729,  740,  84  Pac.  Rep. 
200.  See  People's  L.  Co.  v.  Gillard  (Cal.  App.),  90  Pac.  Rep.  556.  s.  c. 
136  Cal.  57,  68  Pac.  Rep.  576;  Stimson  M.  Co.  v.  Braun,  136  Cal.  125, 
126,  68  Pac.  Rep.  481,  89  Am.  St.  Rep.  116,  57  L.  R.  A.  726. 


§  40  mechanics'  liens.  48 

in  suits  to  foreclose  mechanics'  liens  '*  was  at  first  upheld 
as  against  a  number  of  constitutional  objections,  similar 
provisions  having  been  sustained  in  some  of  the  states  under 
what  may  be  termed  the  "  Washington  doctrine,"  ®^  but  later 
the  provision  was  declared  to  be  unconstitutional,  in  accord- 
ance with  the  Colorado  doctrine,  as  violating  the  fourteenth 
amendment  of  the  Federal  constitution,  as  well  as  the  clauses 
of  the  state  constitution  providing  that  general  laws  shall 
be  uniform,  prohibiting  special  laws,  and  guaranteeing  the 
right  to  acquire,  possess,  and  protect  property,  and  as  allow- 
ing fees  in  one  kind  of  action  and  not  in  other  kinds  of 
actions,  and  as  creating  a  distinction  not  founded  on  any 
constitutional  or  natural  difference.®* 

«  Kerr's  Cyc.  Code  Civ.  Proc,  §  1195. 

«2  Peckham  v.  Fox,  1  Cal.  App.  307, '308,  82  Pac.  Rep.  91  (hearing  in 
the  supreme  court  denied). 

Idaho.  Sess.  Laws  1899,  ch.  i,  p.  150,  §  12,  did  not  violate  art.  i,  §  18, 
of  the  state  constitution,  prohibiting  class  legislation,  nor  tiie  provis- 
ion requiring  equal  justice  to  be  afforded  to  all:  Thompson  v.  Wise 
Boy  M.  &  M.  Co.,  9  Idaho  363,  74  Pac.  Rep.  958. 

Montana.  Comp.  Stats.,  ch.  xxv,  allowing  such  fees,  held  not  to  vio- 
late the  fourteenth  amendment  of  the  constitution  of  the  United 
States:  Gilchrist  v.  Helena  H.  S.  &  S.  R.  Co.,  58  Fed.  Rep.  708;  Helena 
Steam  Heating  Co.  v.  Wells,  16  Mont.  65,  40  Pac.  Rep.  78;  Wortman  v. 
Kleinschmidt,  12  Mont.  316,  30  Pac.  Rep.  280  (1889). 

New  Mexico.  Comp.  Law^s  1897,  §  2229,  providing  for  such  attor- 
neys' fees,  held  not  to  violate  the  fourteenth  amendment  to  the  Fed- 
eral constitution:  Genest  v.  Las  Vegas  M.  Bldg.  Assoc,  11  N.  M.  251,  67 
Pac.  Rep.   743. 

Oregon.  Attorneys'  fees,  under  Hill's  Ann.  Laws,  §  3677,  held  to  be 
In  the  nature  of  costs,  and  not  obnoxious  to  the  constitutional  provis- 
ion as  to  granting  privileges  to  litigants  not  granted  to  others,  and 
denying  the  equal  protection  of  the  laws:  Title  G.  &  T.  Co.  v.  Wrenn, 
35  Oreg.  62,  56  Pac.  Rep.  271,  76  Am.  St.  Rep.  454. 

Washington.  2  Ballinger's  Ann.  Codes  and  Stats.,  §  5911,  allowing 
attorneys'  fees,  held  constitutional:  Griffith  v.  Maxwell,  20  Wash.  403, 
55  Pac.  Rep.  571  (a  leading  case);  Littell  v.  Saulsberry,  40  Wash.  550, 
82  Pac.  Rep.  909;    Fitch  v.  Applegate,  24  Wash.  25,  64  Pac.  Rep.  147. 

As  to  logger's-lien  law,  see  Ivall  v.  Willis,  17  Wash.  645,  50  Pac. 
Rep.  467. 

03  Builders'  Supply  Depot  v.  O'Connor  (Cal.  Sup.,  Jan.  10,  1907),  88 
Pac.  Rep.  982,  983;  Union  L.  Co.  v.  Simon  (Cal.  Sup.),  89  Pac.  Rep.  1081, 
rever.sing,  on  this  point,  s.  c.  (Cal.  App.)  89  Pac.  Rep.  1077;  Mannix 
V.  Tryon  (Cal.  Sup.,  Sept.  19,  1907),  91  Pac.  Rep.  983.  See  also  Atkin- 
son V.  W^oodmansee,  68  Kan.  71,  74  Pac.  Rep.  640,  64  L.  R.  A.  325. 

Colorado.  Provision  as  to  such  fees  (Sess.  Laws  18.93,  ch.  cxvii,  p. 
325.  §18,  3  Mills's  Ann.  Stats.,  1st  ed.,  §  2893a),  held  unconstitutional: 
Davidson  v.  Jennings,  20  Colo.  187,  60  Pac.  Rep.  354,  83  Am.  St.  Rep.  49, 
48  L.  R.  A.  340  (a  leading  .case) ;  Antlers  Park  R.  M.  Co.  v.  Cunning- 
ham, 29  Colo.  284,  68  Pac.  Rep.  226;    Campbejl  v.  Los  Angeles  G.  M.  Co., 


49  CONSTITUTIONAL   ASPECTS  —  LAW   APPLICABLE.  §  41 

The  provision  as  to  costs,*'*  however,  namely,  the  small 
expense  of  filing  the  claim  of  lien,  has  been  sustained  as 
constitutional.®^ 

§  41.  Jurisdiction.  Special  case.  The  jurisdiction  of 
the  superior  court  to  render  a  personal  judgment,  where 
the  amount  is  less  than  three  hundred  dollars,  upon  failure 
to  establish  a  lien  in  the  equitable  suit,  has  been  upheld 
under  the  constitution,®**  although  previously  a  contrary 
ruling  had  been  made.*'' 

Special  case.  It  seems  that  the  present  mechanie's-lien 
law,  although  found  among  the  "  special  proceedings,"  ®' 
being  of  an  equitable  nature,  is  not  a  "  special  case,"  within 
the  meaning  of  the  constitution.®^ 

28  Colo.  256,  64  Pac.  Rep.  194;  Sickman  v.  WoUett,  31  Colo.  58,  71  Pac. 
Rep.  1107;  Burleigh  Bldg.  Co.  v.  Merchant  B.  &  B.  Co.,  13  Colo.  App. 
455,  59  Pac.  Rep.  83,  87;  Los  Angeles  G.  M.  Co.  v.  Campbell,  13  Colo. 
App.  1,  7,  56  Pac.  Rep.  246;  Perkins  v.  Boyd,  16  Colo.  App.  266,  65  Pac. 
Rep.  350,  s.  c.  (Sup.)  86  Pac.  Rep.  1045.  See  Eagle  G.  M.  Co.  v.  Bry- 
arly.  28  Colo.  262,  65  Pac.  Rep.  52. 

Utah.  Rev.  Stats.,  §  1400,  providing  for  such  fees,  held  a  special 
law,  in  violation  of  Const.,  art.  vi,  §  26,  subd.  18,  as  a  general  law  can 
be  made  applicable:  Brubacker  v.  Bennett,  19  Utah  401,  57  Pac. 
Rep.  170. 

m   Kerr's  Cye.  Corte  Civ.  Proc.  §  1195. 

"^  Builders'  Supply  Depot  v.  O'Connor  (Cal.  Sup.,  Jan.  10,  1907),  88 
Pac.  Rep.  982,  985. 

•«  Manni.x  v.  Tryon  (Cal.  Sup.,  Sept.  19,  1907),  91  Pac.  Rep.  983; 
Becker  v.  Superior  Court  (Cal.  Sup.),  90  Pac.  Rep.  689,  overruling 
Miller  v.  Carlisle,  127  Cal.  327,  59  Pac.  Rep.  785. 

«'  Miller  v.  Carlisle,  127  Cal.  327,  59  Pac.  Rep.  785. 

•»  Kerr's  Cyc.  Code  Civ.  I'roc,  pt.  III. 

•°  Cal.  Const.   1879,  art.  vi,  §  5,  Hennlng's  General  Laws,  p.  Ixxxil. 

Under  the  olil  oonstitution,  and  under  the  act  of  1850,  an  equitable 
proceeding  to  foreclose  the  lien  was  provided,  and  it  was  held  not  to 
be  a  "  special  case  ":  Brock  v.  Bruce,  5  Cal.  279;  but  the  act  of  1856,  as 
amended  in  1861,  which  was  a  peculiar  proceeding,  similar  in  its  dis- 
position of  liens  to  proceedings  on  claims  in  insolvency  matters,  waa 
held  to  be  a  "  special  case,"  and  that  county  courts  had  jurisdiction  of 
such  matters:    McNiel  v.  Borland,  23  Cal.  144,  149. 

Montana.     The  case  of  Marsh   v.  Morgan,   18  Mont.   19,   44   Pac.   Rep. 
85,  eritiflzed,  and  it  was  held  that  there  was  nothing  in  the  constitu- 
tion of  Montana  changing  the  rule  that  a  mechanic's-lien  suit  was  an 
equity  case:  Cook  v.  Gallatin  R.  Co..  28  Mont.  340,  72  Pac.  Rep.   678. 
Mech.  Liens  —  4 


S  42  mechanics'  liens.  50 


CHAPTER    III. 

PERSONS    ENTITLED.     IN    GENERAL. 

§  42.     Constitutional  and  legislative  classifications. 

§  43.     Classification  as  to  relation  to  owner  or  employer. 

§  44.     Same.     As  to  individuality  of  claimants. 

§  42.  Constitutional  and  legislative  classifications.^  The 
California  constitution  of  1879  -  enumerates :     1.  Mechanics ; 

2.  Material-men  ;  3.  Artisans ;  and  4.  Laborers  of  every  class, 
as  persons  entitled  to  mechanics'  liens.  After  the  adoption 
of  the  constitution,  section  eleven  hundred  and  eighty-three 
of  the  Code  of  Civil  Procedure  was  amended  in  1880,  by 
which  amendment  another,  5.  Architects,  was  added  to  the 
classes  enumerated  in  the  constitution.  By  the  amendment 
of  March  18,  1885,  the  following  classes  were  added:  6.  Con- 
tractors; 7.  Subcontractors;  8.  Machinists;  9.  Builders; 
10.  Miners,  eis  nominibus ;  and  11.  All  persons  and  laborers 
of  every  class.  The  amendments  of  1887,  1899,  and  1903  did 
not  alter  the  classes  specified  in  section  eleven  hundred  and 
eighty-three. 

Section  eleven  hundred  and  eighty-three  of  the  Code  of 
Civil  Procedure  defines  the  classes  which  are  entitled  to 
liens,  at  least  upon  structures  and  mining  claims ;  ^  and,  as 
it  now  stands,  enumerates:  1.  Mechanics;  2.  Material-men; 

3.  Contractors;  4.  Subcontractors;  5.  Artisans;  6.  Archi- 
tects; 7.  Machinists;  8.  Builders;  9.  Miners;  and  10.  All 
persons  and  laborers  of  every  class,  performing  labor,  etc. 
The  liens  of  those  classes  of  persons  enumerated  in  the  con- 
stitution are  mandatory  liens  directed  to  be  provided  for  by 

1  Before  the  new  coustitution  of  California  was  adopted,  §  1183  of 
the  Code  of  Civil  Pi'ocedure  enumerated  as  persons  entitled  to  liens 
under  the  circumstances  therein  described:  1.  Persons  performing 
labor;  and  2.  Persons  furnishing  materials.  The  old  constitution  did 
not  provide  for  mechanics'   liens. 

See   "  Constitutional   Aspects,"   ch.   ii,   ante. 

»  Ilenning's  General   Laws,   ch.   xx,   p.    civ,   §  15. 

»  Jewell  V.  McKay,  82  Cal.  144,   150,  23  Pac.  Rep.   139, 


51  PERSONS   ENTITLED  —  IN    GENERAL.  §  42 

the  legislature;  the  others  are  not.  Persons  holding  such 
constitutional  mandatory  liens  have,  in  some  respects,  rights 
superior  to  others  not  so  enumerated,  but.  as  between  them- 
selves, they  stand  on  the  same  footing.  This  is  particularly 
so  as  to  the  priority  of  their  claims.* 

Distinction  between  classes  of  lienors.  The  law  recog- 
nizes a  clear  distinction  between  contractors,  subcontractors, 
material-men,  mechanics,''  and  laborers,  and  these  different 
words  designate  distinct  classes  of  persons,  having  different 
rights,  remedies,  and  duties;  but  in  a  few  of  the  states  the 
statute  has  apparently  attempted  to  obliterate  some  of  these 
distinctions.**    The  legislature  has  seen  fit  to  limit  the  benefit 

'  MiUimore  v.  Nofziger  Bros.  L.  Co.  (Cal.  Sup.),  90  Pac.  Rep.  114; 
Stimson  M.  Co.  v.  Nolan  (Cal.  App.,  June  19,  1907),  91  Pac.  Rep.  262. 
See  Corbett  v.   Chambers,  109  Cal.   178,  184,  41  Pac.  Rep.    873. 

See   ■'  Priorities,"   §§  486   et  seq.,   post. 

The  classes  vary  in  the  different  jurisdictions: 

Alaska.     Civ.   Code   1900,  §  262. 

Arizona.      Rev.  Stats.   1901,  §§  2888,  2902,  2903,   2904,   2905,   2906. 

Colorado.     Mills's  Ann.   Stats,  and  Codes,  §§  2867,  2870,   2870a. 

Hawaii.     Rev.    Laws    1905,    §  2173. 

Montana.      Code   Civ.   Proc,   §  2130. 

Xevada.  Cutting's  Comp.  Laws,  §§3881,  3882.  History  of  the 
statute,  as  to  persons  entitled  to  lien,  in  Gould  v.  Wise,  18  Nev.  253, 
3  Pac.  Rep.  30. 

IVew   Mexico.      Comp.   Laws    1897,    §§  2217,    2218. 

Oklahoma.  2  Wilson's  Rev.  and  Ann.  Stats.,  art.  xxvii,  ch.  Ixvi, 
§619,  as  amended  Sess.  Laws  1905,  p.  316;  2  Wilson's  Rev.  and  Ann. 
Stats.,  §  621,  as  amended  Sess.   Laws   1905,  p.   317. 

Oregon.  Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §§  5653, 
5663,    5668. 

Utah.     Rev.  Stats.  1898,  §§  1372,  1397. 

AVashing-ton.     Pierce's   Code,   §  6102. 

Wyoming,     Rev.   Stats.   1899,   §§  2868,    2869,    2889. 

»  Hinckley  v.  Field's  B.  &  C.  Co.,  91  Cal.  136,  139,  27  Pac.  Rep.  594. 

Section  1183  of  Kerr's  Cyc.  Code  Civ.  Proc.  affects  the  right  of 
three  distinct  classes  of  persons:  1.  The  owner;  2.  The  original  con- 
tractor; 3.  Subcontractors,  material-men,  artisans,  and  laborers,  —  so 
classified  with  reference  to  the  rights  of  contractor  under  void  con- 
tract:  Laidlaw  v.  Marye,    133   Cal.    170,   174,   65   Pac.   Rep.   391. 

Colorado.  See  Sayre-Newton  L.  Co.  v.  Union  Bank,  6  Colo.  App.  541, 
41    Pac.    Rep.    844. 

«  See  Malone  v.  Big  Flat  G.  M.  Co.,  76  Cal.  578,  585,  IS  Pac.  Rep. 
772. 

These  distinctions  are  dwelt  upon  in  detail  herein:  See  §§  25  et  seq., 
ante:  and   SS  45  et  seq.,  66  et  seq.,  77  et  seq.,  104  et  seq.,  post. 

Montana.  See  dissenting  opinion  in  Bonner  v.  Minnicr,  13  Mont. 
269.    34    Pac.   Rep.   30,    40   Am.   St.   Rep.   441. 

Utah.     See  Rev.   Stats.,  §1383. 


§  43  MECHANICS     LIENS.  52 

of  the  lien  to  particular  classes,  and  the  courts  are  not 
authorized  to  extend  it  to  others.' 

§  43.     Classification  as  to  relation  to  owner  or  employer. 

Each  of  the  various  classes  of  persons,  above  enumerated 
as  entitled  to  a  mechanic's  lien,  may  be  subdivided  in  two 
great  divisions:  1.  Those  in  privity,  or  those  who  contract 
directly  with  the  owner  or  through  his  common-law  agent ;  ^ 
and  2.  Those  who  do  not  stand  in  a  relation  of  contract  or 
privity  with  the  owner.^ 

Important  consequences  follow  these  distinctions;  such, 
for  instance,  as  whether  or  not  the  claimant  is  obliged  to 
seek  his  remedy,  either  directly  or  indirectly,  against  the 
property,  or  fund  in  the  hands  of  the  owner  due  to  the 

'  Williams  v.  Santa  Clara  M.  Assoc,  66  Cal.  193,  199,  5  Pac.  Rep.  85. 
4  West  Coast  Rep.  616;  Morse  v.  De  Ardo,  107  Cal.  622,  626,  40  Pac.  Rep. 
1018.  In  the  former  case  it  was  said:  "  Indeed,  it  would,  perhaps,  be 
difficult  to  say  why  one  class  of  'material-men'  or  laborers  should 
have  preference  over  another;  why,  for  instance,  the  furnisher  of 
seed,  or  the  plowman,  should  not  have  a  lien  on  the  farm  of  him  to 
whom  the  seed  is  supplied,  or  for  whom  the  plowing  is  done."  And  in 
the  concurring  opinion  of  Mr.  Justice  McFarland  in  Giant  Powder  Co. 
V.  San  Diego  F.  Co.,  88  Ca'.  20,  25,  25  Pac.  Rep.  976,  it  is  said:  "In  the 
eye  of  justice,  a  merchant  who  deals  in  lumber  or  hardware  has  no 
more  right  to  a  lien  than  a  merchant  who  deals  in  potatoes,  or  flour, 
or  sugar;  and  the  former  has  a  lien  only  as  a  legislative  privilege. 
The  language  should  not  be  strained  for  the  purpose  of  enlarging  the 
privileged  class."  See  Reese  v.  Bald  Mt.  Consol.  G.  M.  Co.,  133  Cal.  285, 
290,  65  Pac  Rep.  578;  San  Francisco  Pav.  Co.  v.  Fairfield,  134  Cal.  222, 
224,  66  Pac.  Rep.   255. 

Colorado.  Lindemann  v.  Belden  Consol.  M.  &  M.  Co,,  16  Colo.  App. 
342,  65  Pac.  Rep.  403;  Sayre-Newton  L.  Co.  v.  Union  Bank,  6  Colo.  App. 
541,  552,  41  Pac.  Rep.  844;  Pitschke  v.  Pope,  20  Colo.  App.  328,  78  Pac. 
Rep.  1077;  Maher  v.  Shull,  11  Colo.  App.  322,  52  Pac.  Rep.  1115;  Cary 
H.  Co.  V.  McCarty,  10  Colo.  App.  200,  50  Pac.  Rep.  744. 

Nevada.  But  see  Salt  Lake  H.  Co.  v.  Chainman  M.  &  E.  Co.,  137  Fed. 
Rep.  632   (C.  C,  Nev.). 

Oregon.      See  Kezartee  v.  Marks,  15  Oreg.  529,  534,  16  Pac.  Rep.  407. 

*  In  interpreting  niechanlc's-licn  la«-,  it  is  not  to  be  considered  as 
a  general  law  relating  to  contracts  and  contractual  relations,  but 
simply  as  a  means  provided  whereby  a  laborer,  or  other  person  pro- 
vided for  in  the  law,  may  declare  his  intention  to  exercise  his  consti- 
tutional right  to  a  lien,  and  to  enforce  the  same:  Los  Angeles  Pressed 
Brick  Co.  v.  Higgins  (Cal.  App.,  Aug.  8,  1908),  7  Cal.  App.  Dec.  164. 

Utah.  "Original  Contractors":  Rev.  Stats.,  §1383.  See  Teahen  v. 
Nelson,  6  Utah  363,  23  Pac.  Rep.  764. 

»  Cahoon  v.  Levy,  6  Cal.  295,  65  Am.  Dec.  515,  which  made  the  same 
dist;nction  as  to  the  statute  then  in  force.  See  Davies-Henderson  L. 
Co.  V.  Gottschalk,   81  Cal.  641,  648,   22  Pac.  Rep.   860. 

Kerr's  Cyc.  Code  Civ.  froc.,  $  1183,  and  note. 


53  PERSONS    ENTITLED IN    GENERAL.  §  44 

contractor,  and  whether  the  lienor's  rights  are  limited  by 
the  terms  of  a  valid  or  void  statutory  original  contract,  and 
the  like,  all  of  which  will  be  fully  treated  in  their  appro- 
priate places  hereafter. 

§  44.  Same.  As  to  individuality  of  claimants.  \\^hile  the 
right  to  a  lien  is,  under  the  California  statute,  personal/" 
yet  such  right  is  not  confined  to  an  individual,  but  is  also 
extended  to  partnerships  ^^  and  to  corporations.^^ 

"  See  §§  19-23,  ante. 

"  Simons  v.  Webster,  108  Cal.  16,  40  Pac.  Rep.  1056;  Pacific  Mut.  U 
Ins.  Co.  V.  Fisher,  109  Cal.  566,  42  Pac.  Rep.  154.  See  San  Diego  L.  Co. 
V.   Wooldredge,   90  Cal.   574,   27  Pac.  Rep.   431. 

E^ach  partner  has  the  right  to  create  a  lien;  and  where  a  partner- 
ship makes  a  contract  for  materials,  it  is  immaterial  to  the  right  of 
the  partnership  to  file  a  lien  therefor,  whether  the  contract  was  or 
was  not  completed  prior  to  the  dissolution  of  the  partnership,  or  that 
one  partner  sold  to  the  other  partners  all  his  interest  in  the  firm;  and 
the  right  of  the  partnership  to  claim  and  file  a  claim  of  lien  for  the 
materials  is  not  destroyed  by  the  extinguishment  of  one  partner's  gen- 
eral interest  in  the  partnership,  or  by  the  substitution  of  a  new  part- 
ner in  his  place:  Simons  v.  Webster,  108  Cal.  16,  19,  40  Pac.  Rep.  1056. 
See  also  Dunlop  v.  Kennedy  (Cal.  Sup.,  Aug.  31,  1893),  34  Pac.  Rep.  92. 

\t'ashington.  And  a  person  furnishing  material  under  the  name  of 
the  "Western  Mill  Factory"  may  assert  a  lien  in  his  own  name: 
Littell  V.  Saulsberry,  40  Wash.  550,  82  Pac.  Rep.  909. 

"  See  Russ  L.  Co.  v.  Garrettson,  87  Cal.  589,  590,  25  Pac.  Rep.  747; 
Giant  Powder  Co.  v.  San  Diego  F.  Co.,  88  Cal.  20,  22,  25  Pac.  Rep.  976; 
Kennedy-Shaw  L.  Co.  v.  Priet,  113  Cal.    291,  45  Pac.  Rep.  336. 

Oregon.  It  was  held  that  a  corporation  organized  to  manufacture 
and  sell  lumber  could  not  hold  a  lien  for  labor  performed  in  the  con- 
struction of  a  building:  Dalles  L.  &  M.  Co.  v.  Wasco  W^  Mfg.  Co.,  3 
Oreg.  527. 

Utah.     See  Rev.  Stats.,   §  1377. 

Washington.  Where  a  foreign  corporation  filed  articles  of  incor- 
poration, and  the  bond  of  its  agent  was  made  before  suit  to  foreclose 
its  lien  was  commenced,  but  after  the  filing  of  the  claim  of  lien,  it  is 
sufficient:  Huttig  Bros.  Mfg.  Co.  v.  Denny  Hotel  Co.,  6  Wash.  122.  125. 
32  Pac.  Rep.  1073.  See  Dearborn  F.  Co.  v.  Augustine,  5  Wash.  67,  31 
Pac.  Rep.  327. 

*  Under  §  <>133  of  Pierce's  Code,  a  person  is  entitled  to  a  lien,  though 
a  stockholder  and  officer  of  a  corporation:  Cors  v.  Ballard  I.  W.,  41 
Wash.  390,  83  Pac.  Rep.  900  (general  laborer's  lien  on  property  of 
corporation). 

Corporation  is  a  "person"  entitled,  under  the  above  statute:  See 
note  7  Am.  &  Eng.  Ann.  Cas.  430. 

Same.  Foreign  corporation  entitled  to  a  lien,  same  as  a  domestic 
corporation:  See  Wetzel  &  T.  R.  Co.  v.  Tennis  Bros.  Co.,  145  Fed.  Rep. 
458,  7  Am.  &  Eng.  Ann.  Cas.  426. 

See  also  authorities  collected  in  note  7  Am.  &  Eng.  Ann.  Cas.  430. 

Municipal  corporation  not  cHtitled,  unless  specially  authorized  by 
statute:  Seo  note  7  Am.  &  Eng.  Ann.  Cas.  430. 


45  mechanics'  liens.  54 


CHAPTER   IV. 
OEIGINAL    CONTRACTOES. 

§  45.  Definition  of  "  original  contractor." 

§  46.  Same.     One  test.     Intermediate  liens. 

§  47.  Same.     Four  essential  factors. 

§  48.  Same.     Two  or  more  original  contractors. 

§  49.  First  test.     Privity. 

§  50.  Same.     Holder  of  legal  title. 

§  51.  Same.     Tenant. 

§  52.  Same.     Void  contract. 

§  53.  Same.     Implied  original  contract. 

§  54.  Second  test.     Intermediate  lien-holders. 

§  55.  Same.     Agency. 

§  56.  Same.     Direct  contract  with  owner. 

§  57.  Same.     Material-man.  ^ 

§  58.  Third  test.     Personal  liability. 

§  59.  Fourth  test.     Labor  contract. 

§  60.  Distinction  between  "  original  contractor  "  and  "  material-man." 

§  61.  General  rights  of  original  contractors.     As  against  person  who 

"  caused  "  the  improvement  to  be  made. 

§  62.  Same.     As  against  other  persons  in  privity  with  him. 

§  63.  Same.     As  against  other  persons. 

§  64.  General  obligations  of  original  contractors.     To  person  causing 

improvement  to  be  made. 

§  65.  Same.     To  other  persons. 

§  45.  Definition  of  "  original  contractor."  The  California 
statute  providing  for  and  regulating  mechanics'  liens  uses 
the  expressions  "  contractor  "  ^  and  "  original  contractor  "  ^ 
interchangeably  as  synonymous.  These  terms  assume,  in 
this  statute,  a  highly  technical  meaning.  Their  definitions 
are  not  free  from  difficulties.  The  decisions  of  the  courts 
do  not  attempt  to  define  the  term  "  original-  contractor." 

>  Kerr's  Cyc.  Code  Civ.  Proc,  §§  1183,  1184,  1193,  1201,  and  notes. 

Oklalioinn.     See  Ryndak  v.  SeaweH,  13  Okl.  737,  76  Pac.  Rep.  170. 

»  Kerr's  Cyc.  Code  Civ.  Proe.,  §§  1187,  1194,  and  notes.  • 

Colorado.      "  Principal  contractor." 

Idaho.  As  to  one  contracting  directly  with  owner,  an  original  con- 
tractor, see  dissenting  opinion  Pacific  States  S.  L.  &  B.  Co.  v.  Dubois, 
11  Idaho  319,  83  Pac.  Rep.  513,  518. 


55  ORIGINAL    CONTRACTORS.  §  46 

The  courts  confine  themselves  to  pointing  out  the  conse- 
quences which  flow  from  the  status  of  an  original  contractor, 
rather  than  to  laying  down  rules  by  which  it  may  be  deter- 
mined whether  a  person  is  such  a  contractor;  rather  to 
declaring  who  is  not  an  original  contractor,  than  to  defining 
who  is  such  a  contractor. 

§  46.  Same.  One  test.  Intermediate  liens.  One  test 
laid  down  by  the  supreme  court  of  California  is :  "  If  there 
could  be  intermediate  lien-holders  for  work  done  or  materials 
furnished,"  then  the  person  contracting  with  the  owner  is 
an  original  contractor.^  This  seems  to  mean  that  if  the 
person  who  enters  into  a  contract  with  the  owner  can, 
by  his  contracts  with  others,  create  such  a  relation  between 
himself  and  them  that  they,  by  virtue  of  the  statute,  may 
have  a  lien  upon  the  property  for  which  they  have  furnished 
materials,  or  upon  which  they  have  performed  labor,  then 
such  person  is  an  "  original  contractor " ;  but  the  com- 
petency to  create  "  intermediate  "  liens  is  rather  a  result  that 
follows  from  the  status  of  "  original  contractor,"  and,  at 
most,  is  only  one  of  the  essential  characteristics  of  an  "  origi- 
nal contractor,"  *  because  a  subcontractor  may  create  "  inter- 
mediate "  liens,  as  will  be  more  fully  discussed  hereafter.^ 

Material-men.  It  is  thought,  in  view  of  the  constitutional 
provision,  that  a  material-man  who  is  obligated  by  his  con- 
tract to  do  certain  work  on  the  premises  in  placing  the 
materials  in  situ  may  enable  his  laborers  to  impose  liens 
upon  the  property  for  the  work  of  actually  affixing  the 
materials  to  the  realty.  In  the  case  of  Roebling's  Sons  Co. 
v.  Humboldt  Electric  Light  and  Power  Company,*^  among 
others,  the  persons  who  furnished  an  electric  "  plant  "  and 

•  Sparks  v.  Butte  County  G.  M.  Co.,  55  Cal.  389,  follo^vecl  in  La  Grill 
V.  Mallard.  90  Cal.  373,  376,   27  Pac.  Rep.  294;    Hinckley  v.  Field's  B.  &, 
C.  Co.,  91  Cal.  136,  140,  27  Pac.  Rep.  594;    Sparks  v.  Butte  County  G.  M. 
Co.,  55  Cal.  3S9,  392;    Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  106  Cal.  224.  233, 
39  Pac.  Rep.  758. 

*  As  to  oriKiual  contract,  non-statutory,  see  ch.  xiv,  post. 
Same,  stiitiitory,  see  chs.  xv  et  seq.,  post. 

'  §§  66  et  .seq.,  post. 

•112  Cal.   288,   44   Pac.  Rep.   S68. 

See  §§  66  et  seq.,  post. 


§§47,48  mechanics'  liens.  56 

prepared  the  foundation  for  the  same  were  held  to  be 
material-men,  and  not  original  contractors,  and  persons  fur- 
nishing them  with  materials  were  held  not  entitled  to  a  lien 
against  the  property. 

Laborers  placing  in  situ.  Yet,  under  these  circumstances, 
it  will,  in  all  probability,  not  be  held  that  the  laborers  doing 
the  actual  work  of  preparing  the  foundation  or  installing 
the  "  plant  "  would  not  be  entitled  to  liens  upon  the  prop- 
erty for  the  value  of  their  services;  although  it  was  held 
that  the  persons  furnishing  the  materials  to  such  material- 
men were  not  entitled  to  a  lien  on  the  property  for  the 
value  thereof.  To  hold  otherwise  as  to  such  laborers  would 
be  practically  to  obliterate  the  constitutional  provision  and 
a  portion  of  section  eleven  hundred  and  eighty-three  of  the 
Code  of  Civil  Procedure,  to  the  effect  that  the  wages  of 
laborers  actually  engaged  in  the  construction  of  an  improve- 
ment upon  real  property  shall  be  secured  by  a  lien  thereon. 

§  47.  Same.  Four  essential  factors.  The  following  is 
submitted  as  tending,  in  a  measure,  to  clear  up  this  difficult 
subject.  Under  the  California  statute  there  are  four  essen- 
tial factors  necessary  to  establish  the  status  of  an  "  original 
contractor":  1.  The  person  must  be  in  privity  with  the 
owner,  or  person  who  "  caused  the  improvement "  to  be 
made,  by  direct  contract  with  him,  or  through  his  common- 
law  agent ; "  2.  He  must  be  competent  to  create  "  inter- 
mediate "  liens ;  3.  Such  liens  must  be  dependent  upon,  or 
be  capable  of  being  marshaled  under,  some  indebtedness 
for  which  he  is  personally  liable  to  some  person  or  persons; 
and  4.  The  contract  must  be  substantially  one  for  labor. 
These  characteristics  will  be  considered  hereafter  in  detail.^ 

§  48.  Same.  Two  or  more  original  contractors.  The 
chapter  in  the  California  code  relating  to  mechanics'  liens 

'  And  not  by  a  merely  statutory  agent,  under  §  1183,  Kerr'»  Cyc. 
Code  Civ.  Proo.,  providing  that  a  subcontractor,  etc.,  in  'charge  of  the 
construction,  etc.,  shall  be  held  to  be  the  "  agent  "  of  the  owner  for 
the  purposes  of  the  chapter. 

See   •'  Agency,"   §§  572   et  seq.,   post. 

•  §§  49  et  seq.,  post. 


57  ORIGINAL    CONTRACTORS.  §§  49.  50 

does  not  contemplate  that  there  shall  be  no  "  original  con- 
tractor," except  for  the  entire  work  of  constructing  a  build- 
ing. For  the  purpose  of  constructing  a  building,  the  owner 
may  enter  into  different  original  contracts  for  the  different 
classes  of  work  involved  therein.  If  he  should  enter  into  a 
contract  with  one  person  for  the  construction  of  a  building 
in  all  its  parts,  except  the  painting,  and  should  afterwards 
enter  into  a  contract  with  another  person  to  do  the  painting 
of  the  building,  each  of  these  individuals  would  be  an 
"  original  contractor,"  within  the  meaning  of  the  statute,  and 
it  would  be  immaterial  whether  the  contract  with  the  latter 
for  the  painting  was  entered  into  prior  to  or  subsequently  to 
the  completion  of  the  work  of  erecting  the  building.® 

§  49.  First  test.  Privity.^"  Generally  speaking,  in  order 
to  confer  upon  laborers,  material-men,  and  the  other  per- 
sons named  in  the  statute,  a  right  to  a  lien  under  an  original 
contract,  it  must  have  all  the  elements  essential  to  a  valid 
contract  at  the  common  law.  Privity  is  one  of  the  essential 
elements  to  a  valid  contract,  or  to  rights  thereunder.  If 
there  is  no  privity  between  the  contractor  and  the  owner,  or 
person  who  "  caused  "  the  improvement,  it  seems  clear  that 
such  contractor  is  not  an  "  original  contractor."  ^^  It  is 
evident  that  the  "  owner  "  cannot  contract  with  himself  and 
thereby  make  himself  an  "  original  contractor " ;  and  it 
follows  from  this  that  the  "  owner,"  or  the  one  holding  the 
legal  title  to  the  real  property,  cannot  be  an  "  original 
contractor,"  even  though  he  may  agree  with  the  equitable 
owner  to  erect  a  building  upon  the  premises  for  the  latter. 

§  50,  Same.  Holder  of  legal  title.  A  person  holding 
the  legal  title  to  land,  who  enters  into  a  contract  Avith  a 

»  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  106  Cal.  224,  232,  39  Pac.  Rep.  758. 
See  La  GriH  v.  MaUard,  90  Cal.  373,  375,  27  Pac.  Rep.  294;  Bianchi  v. 
Hughes,  124  Cal.  24,  56  Pac.  Rep.  610.  611. 

See  §  16,  ante. 

Oregon.  See  Beach  v.  Stamper,  44  Greg.  4,  74  Pac.  Rep.  208,  102  Am. 
St.  Rop.  597. 

>"  Utah.     See  Rev.  Stats.,  §  1383. 

"  See  Macomber  v.  Bigelow,  123  Cal.  532,  56  Pac.  Rep.  449. 


§§  51, 52  MECHA^acs'  lienh  58 

corporation  to  construct  a  factory  thereon,  for  a  considera- 
tion fixed  upon,  and  agrees  to  convey  the  building  after  its 
completion,  together  with  the  land  upon  which  it  stands,  to 
the  company,  is  not  an  "  original  contractor,"  within  the 
meaning  of  the  mechanic's-lien  law,^-  but  is  the  owner  of 
the  building.^^ 

§  51.  Same.  Tenant.  "Where  a  tenant,  with  the  consent 
of  his  landlord,  makes  a  contract  with  a  third  person, 
whereby  the  latter  is  to  raise  a  house  upon  the  land,  the 
tenant  is  not  an  "  original  contractor,"  within  the  meaning 
of  the  statute,  but  is  the  person  who  "  caused  "  the  building 
to  be  raised,  and  the  third  person  is  the  "  original  con- 
tractor," or  person  who,  in  the  sense  of  the  statute,  "  con- 
tracted "  to  raise  it.^* 

§  52.  Same.  Void  contract.  And  again,  wJiere  the 
"  original  contract '"  is  void  for  want  of  record,^^  although 
the  statute  provides  that  under  such  circumstances  the 
labor  done  and  materials  furnished  shall  be  deemed  to  have 
been  done  and  furnished  at  the  personal  instance  of  the 
owner,  the  subcontractor,  who,  of  course,  is  not  in  actual 
privity  with  the  owner,  does  not  thereby  become  the  "  origi- 
nal contractor,"  ^^  although  such  subcontractor  is  competent 

"  Kerr's  Cyc.  Coile  Civ.  Proo.,  §  1183. 

"  Hinckley  v.  Field's  B.  &  C.  Co.,  91  Cal.  136,  139,  27  Pac.  Rep.  594. 

Colorado.  See  Bitter  v.  Mouat  T^.  &  I.  Co.,  10  Colo.  App.  307,  314 
(1883),  51  Pac.  Rep.  510. 

Idaho.  See  dissenting  opinion,  Ailshie,  J.,  Pacific  States  S.  L.  &  B. 
Co.  V.  Dubois,  11  Idaho  319,  83  Pac.  Rep.  513,  518. 

"  Johnson   v.   Dewey,   36   Cal.    623,   624    (1862). 

Arizona.  See  Walter  C.  Hadley  Co.  v.  Cummings,  7  Ariz.  258,  64 
Pac.  Rep.   443. 

Montana.  Block  v.  Murray,  12  Mont.  545,  31  Pac.  Rep.  550  (contract 
of  purchase  requiring  work  on  mine  to  be  done). 

"  See  "Original  Contract,"  §§286  et  sen.,  post. 

'"  Coss  V.  MacDonougli,  111  Cal.  662,  667,  44  Pac.  Rep.  325:  Davis  v. 
MacDonough,  109  Cal.  547,  549,  42  Pac.  Rep.  450.  But  see  Kellogg  v. 
Howes.  81  Cal.  170,  180,  22  Pac.  Rep.  509  (see  11  Pac.  Coast  L.  J.  589. 
6  L.  R.  A.  588),  where  it  was  somewhat  carelessly  .stated  that  the 
claimants  under  a  void  contract  became,  for  the  purpose  of  their  liens, 
"original  contractors";  but  by  this  the  court  evidently  intended  it  to 
be  understood  that  they  wgre  to  be  deemed  to  have  contracted  directly 
with  the  owner. 


59  ORIGINAL    CONTRACTORS.  §§  53-55 

to  create  "  intermediate  "  lien-holders ;  for  where  the  "  origi- 
nal contract  "  is  void,  the  "  original  contractor  "  ceases  to 
be  such,  within  the  meaning  of  the  statute,^'  at  least  for 
certain  purposes. 

§  53.  Same.  Implied  original  contract.  This  original  con- 
tract may  be  either  express  or  implied.  Although  there  may 
be  no  statutory  "  original  contract,"  with  its  peculiar  inci- 
dents, there  may  still  be  an  "  original  contractor  " ;  e.  g.,  the 
original  contractor  may  enter  into  an  implied  contract  with 
the  owner,  as  where  he  undertakes  to  paint  a  building,  or 
decorate  rooms  therein,  furnishing  the  labor  and  material 
therefor,  and  no  express  agreement  is  made  as  to  his  com- 
pensation for  such  labor  and  materials.^^ 

§  54.  Second  test.  Intermediate  lien-holders.  The  "  origi- 
nal contractor  "  must  be  competent  to  create  "  intermedi- 
ate "  liens.  Although  a  person  may  be  in  privity  with  the 
owner,  yet  he  may  not  be  competent  to  create  "  intermedi- 
ate "  liens.  Thus  a  mere  laborer  who  gives  his  personal  ser- 
vices on  the  property,  at  the  request  of  the  owner,  imder 
contract  with  him,  and  who  is  not  in  charge  thereof,  and  who 
is  without  authority  of  the  owner  to  incur  indebtedness  on 
his  behalf,  is  not  an  "  original  contractor."  ^^ 

§  55.  Same.  Agency.  The  original  contractor,  ordinarily, 
is  at  arm's-length  from  the  owner,  but  sometimes  a  so-called 
contractor  enters  into  a  contract  to  erect  a  structure  upon 
a  tract  of  land  for  a  percentage  of  the  cost  of  construction, 

"  Pierce  v.  Birkholm,  115  Cal.  657,  662,  47  Pac.  Rep.  681:  Davis  v. 
MacDonough,  109  Cal.  547,  549,  42  Pac.  Rep.  450. 

"  See  La  Grill  v.  Mallard,  90  Cal.  373.  375,  27  Pac.  Rep.  294;  Bennett 
V.  Davis,  113  Cal.  337,  340,  54  Am.  St.  Rep.  354,  45  Pac.  Rep.  684.  See, 
as  bearing  somewhat  on  this  point,  Baird  v.  Peall,  92  Cal.  235,  237,  28 
Pac.  Rep.  285;  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  106  Cal.  224,  233,  39 
Pac.  Rep.  758. 

See  §§194,   202,    211,   214,   259   et  seq.,   post. 

'•••  See  Davis  v.  MacDonough,  109  Cal.  547,  549,  42  Pac.  Rep.  450; 
Sparks  v.  Butte  County  G.  M.  Co.,  55  Cal.  389,  392.  See  also  Weithoff 
V.  Murray,  76  Cal.  508,  510,  18  Pac.  Rep.  435. 

See  §§  104  et  seq.,  post. 

See  "Laborer,"  §S  109  et  seq.,  post. 

Material-man   is    not    an   "original    ooutraetor ":    See    §46,    ante. 


§§  56-58  mechanics'  liens.  60 

rendering  himself,  in  effect,  the  common-law  agent  of  the 
owner,  instead  of  the  statutory  agent.  In  such  event,  chiim- 
ants  dealing  with  him  cannot  be  said  to  have  "  intermediate 
liens,"  but  must  be  held  to  have  contracted  directly  with 
the  owner. -°  This  subject  will  be  further  considered  under 
the  head  of  "  Agency."  " 

§  56.  Same.  Direct  contract  with  owner.  A  person  who 
contracts  directly  with  the  owner  may  not  be  competent  to 
create  such  "  intermediate  "  liens,  although  he  may  be  per- 
sonally indebted  to  others  in  the  performance  of  his  contract. 
Thus  a  mere  material-man  cannot  create  such  liens  in  behalf 
of  persons  engaged  in  the  mere  preparation  of  the  materials 
which  he  furnishes.-^  or  in  behalf  of  persons  from  whom 
he  obtained  them ;  and  such  persons  have  no  lien  upon  the 
property.^^ 

§  57.  Same.  Material-man.  A  mere  material-man  is  not 
an  "  original  contractor."  not  only  for  the  reasons  set  forth 
in  the  sections  immediately  preceding,  namely,  on  account 
of  his  inability  to  create  intermediate  lien-holders,  but  also 
particularly  because  his  contract  is  not  a  contract  for  labor, 
under  the  test  hereafter  to  be  more  fully  discussed  in  this 
chapter.^*  It  is  sometimes  difficult  to  determine  whether  a 
person  is  an  "  original  contractor  "  or  a  "  material-man."  ^^ 

§  58.  Third  test.  Personal  liability.  The  "  intermedi- 
ate "  liens  must  be  dependent  upon,  or  be  capable  of  being 

=■»  Oregon.     See  Cline  v.  SheU,  43  Oreg.  372,  73  Pac.  Rep.  12. 

"  See  "Agency,"  §§  572  et  seq.,  post. 

'■"  See  "Definition,"  §4.5,  ante.  Tlie  text  refers  to  labor  other  than 
that  of  placing  the  material  in  situ. 

-*  Sparks  v.  Butte  County  G.  M.  Co.,  55  Cal.  389,  391;-  Wilson  v.  Hind, 
113  Cal.  357,  45  Pac.  Rep.  695. 

See  "Material-men,"  §§  77,  SI  et  seq.,  post. 

"  Schwartz  v.  Knight,  74  Cal.  432,  433,  16  Pac.  Rep.  235;  California 
P.  W.  V.  Blue  Tent  Const.  H.  G.  M.,  22  Pac.  Rep.  391. 

See  §§  59  et  seq.,  post. 

Idaho.  The  owner's  material-man  was  held  to  be  an  original  con- 
tractor for  the  purpose  of  filing  claim  of  lien:  Colorado  I.  W.  v. 
Riekenberg,    4   Idaho   262,   38   Pac.   Rep.    651. 

I'tah.     But  see  Rev.  Stats.,  §  1383. 

^  See  "Material-men,"  §§77,  81,  post. 


61  originaij  contractors.  §  59 

marshaled  under,  some  indebtedness  for  which  the  "  original 
contractor  "  is  personally  liable  to  some  person  or  persons. 
A  person  may  be  "competent  "  to  create  such  "  intermediate 
liens,"  and  be  in  direct  privity  with  the  owner,  but  if  he  is 
not  personally  liable  for  the  indebtedness,  he  still  may  not 
be  an  "  original  contractor."  Thus  the  architect  of  the  work 
upon  the  premises  might  be  competent  to  create  liens  thereon 
and  be  in  direct  contractual  relations  with  the  owner,  but, 
acting  as  the  mere  agent  of  the  owner,  he  would  not  be  per- 
sonally liable  for  the  materials  furnished  or  labor  performed ; 
and  it  seems  clear  that  a  mere  architect  is  not  an  original 
contractor.-® 

A  builder,  or  foreman  in  charge  of  the  construction,  like- 
wise, might  be  hired  by  the  owner  by  the  day  for  that 
purpose,  and  be  competent  to  create  liens  upon  the  premises 
by  hiring  men  and  purchasing  materials  as  the  agent  of  the 
owner,  and  thereby  not  be  personally  responsible  for  the 
same,  and  thus  not  be  an  original  contractor.^^ 

§  59.  Fourth  test.  Labor  contract.-^  The  contract  must 
be  essentially  one  for  "  construction,  alteration,  or  repair," 
or  for  work  or  labor,  with  or  without  materials,  and  not 
"for  materials."  Stated  in  this  form,  the  principle  seems 
plain;  but  it  is  often  difficult  to  determine  when  a  contract 
is  for  construction  or  materials,  depending  upon  the  peculiar 
facts  of  each  case.  This  subject  is  more  fully  discussed 
under  the  head,  "  Distinction.  Material-man.  Original  Con- 
tractor, and  Subcontractor."  29 

»•  See  Kerr's  Cyc.  Code  Civ.  Proc,  §1183.     See  §§46,  54,  ante. 

AVasliinston.    See  CadweU  v.  Brackett,  2  Wash.  321,  26  Pac.  Rep.  219. 

■■"  In  Davies-IIenderson  L,.  Co.  v.  Gottsclialk,  81  Cal,  641,  647.  22  Pac. 
Rep.  860,  it  was  contended  that  there  must  be  a  personal  liability  on 
the  part  of  some  one  to  support  a  lien.  The  court  said:  "This  may  be 
so,  though  we  do  not  so  hold."  There  was,  however,  a  personal  lia- 
bility in  that  case. 

■■«  Oreson.     See  Tatum  v.  Cherry,  12  Oreg.  135,  6  Pac.  Rep.  715  (1874). 

Di.s<iuction  between  sales  of  nersonalty  and  agreements  for  work 
and  labor,  see  1  L.  R.  A.  507,  14  L.  R.  A.  230. 

^  See  §  77,  post. 

Washington.  See  Pacific  R.  M.  Co.  v.  Hamilton.  61  Fed.  Rep.  476 
(C.  C);  Pacific  R.  M.  Co.  v.  James  Street  Const.  Co.,  68  Fed.  Rep. 
966,  97l!  16  C.  C.  A.  68,  29  U.  S.  App.  698. 


§  60  mechanics'  liens,  62 

Several  "  original "  contractors.  It  is  a  common  practice 
for  a  party  desirous  of  erecting  a  building  to  let  different  con- 
tracts to  various  parties  for  the  building  of  certain  portions 
of  it ;  and  it  is  not  necessary  that  the  contract  be  for  the 
building  of  the  entire  structure,  in  order  that  each  may  be 
impressed  with  the  status  of  original  contractor,  and  men 
employed  by  them  may  be  entitled  to  file  a  claim  of  lien.""* 

§  60.  Distinction  between  "  original  contractor "  and 
"  material-man."  It  is  clear  that  a  person  who  furnishes 
materials  to  the  owner,  without  performing  any  labor  upon 
the  building  or  land,  or  in  the  placing  of  the  materials  in 
situ,  is  not  an  original  contractor.^^  Generally  speaking,  the 
person  who  contracts  with  the  owner  for  certain  work  to 
be  done  on  a  building  is  an  "  original  contractor."  Thus  a 
painter  who  contracts  to  paint  a  building  is  an  original 
contractor,  even  though  he  furnishes  the  paint  for  such 
work.^-      A    dii^culty    arises,    however,    in    distinguishing 

^  La  GriU  v.  MaUard,  90  Cal.  373,  375,  27  Pac.  Rep.  294;  Pacific  Mut. 
L.  Ins.  Co.  V.  Fisher,  106  Cal.  224,  232,  39  Pac.  Rep.  758. 

See  §§  45  et  seq.,  ante.  But  see  Sparks  v.  Butte  County  G.  M.  Co.,  55 
Cal.  389,  392. 

In  Malone  v.  Big  Flat  G.  M.  Co.,  76  Cal.  578,  586,  18  Pac.  Rep.  772,  a 
laborer  had  a  contract  to  furnish  certain  other  laborers,  but  the  wages 
of  the.=!e  men  were  to  be  paid  to  him  individually,  and  he  employed  the 
men.  The  contract  was,  therefore,  substantially  to  do  labor;  but  if  he 
had  simply  acted  the  part  of  an  employment-office,  and  the  owner  was 
directly  liable  to  the  laborers,  he  would  not  have  been  an  original 
contractor. 

Washington.  See  Hopkins  v.  Jamieson-Dixon  M.  Co.,  11  Wash.  308, 
317,  39  Pac.  Rep  815:  "This  court  has  held  that  one  cannot  enforce  a 
lien  for  the  labor  of  hired  men,  but  we  think  that  the  testimony  in  this 
case  shows,  in  the  case  of  Hopkins,  that  it  was  substantially  for  fur- 
nishing and  for  his  own  labor." 

31  Kerckhoff-Cuzner  M.  &  L.  Co.  v.  Olmstead,  85  Cal.  80,  S3,  24  Pac. 
Rep.  648.     See  Barrows  v.  Knight,  55  Cal.   155,  158. 

Idaho.  Contra,  California  cases  considered:  Colorado  I.  W.  v.  Rie- 
kenberg,   4   Idaho   262,   38   Pac.   Rep.    651. 

Montana.  See  Eccleston  v.  Hetting,  17  Mont.  88,  42  Pac.  Rep.  105, 
where  the  court  construed  the  contract  as  requiring  the  placing  of  the 
materials  in  situ. 

Oregon.  Same  rule  as  text:  Inman  v.  Henderson,  29  Oreg.  116,  45 
Pac.  Rep.  300. 

AVashington.  Pacific  RoUing-Mill  Co.  v.  Hamilton,  61  Fed.  Rep.  476 
(Cir.  Ct.),  affirmed  in  Pacific  Rolling-Mill  Co.  v.  James  Street  Const. 
Co.,  68  Fed.  Rep.  966,  16  C."  C.  A.  68,  29  U.  S.  App.  698. 

»  Baird  v.  Peall,  92  Cal.  235,  237,  28  Pac.' Rep.  285. 


63  ORIGINAL    CONTRACTORS.  §  60 

betAveen  an  "  original  contractor,''  who  may  not  only  perform 
labor,  bnt  who  may  also  furnish  materials  therefor,  and  a 
"  material-man  "  who  is  required  by  his  contract  not  only 
to  furnish  materials  but  also  the  labor  of  placing  them  in 
situ  upon  the  premises.^^ 

Illustrations.  In  Bennett  v.  Davis,^*  it  was  said  by  Mr. 
Justice  Temple:  "The  question  is  somewhat  similar  to  that 
which  sometimes  arises  under  the  statute  of  frauds  —  the 
precise  issue  being  whether  the  contract  is  one  of  sale  or 
for  the  manufacture  of  goods.  Numerous  decisions  have 
been  rendered  in  such  cases,  and,  so  far  as  I  know,  no  rule 
universally  applicable  has  been  formulated.  The  cases  seem 
generally  to  turn  upon  the  relative  value  of  the  work  and 
goods,  or  how  far  the  article  was  modified  by  the  work.  .  .  . 
The  main  consideration,  after  all,  is,  whether  the  labor 
bestoAved  upon  the  article  was  merely  trifling  in  comparison 
to  the  price.  .  .  .  Hinckley  v.  Field's  Biscuit  and  Cracker 
Co.,^^  was  a  case  where  plaintiff  contracted  to  furnish  '  and 
to  deliver  and  put  in  place,  upon  foundations  prepared  by 
said  Arthur  Field  in  said  structure,  building,  and  factory,  a 
steam  plant,  consisting  of  boilers,  engine,  heater,  feed-pipes, 
etc'  Plaintiff  was  held  to  be  a  material-man  only,  and  it 
was  said :  '  The  work  done  by  them  on  the  premises  of 
defendants,  in  placing  them  in  position,  was  only  the  com- 
pletion of  their  contract  to  deliver  such  finished  machinery, 
and  did  not  convert  them  into  contractors  for  the  erection 
of  the  factory,  or  any  part  of  it,  within  the  true  intent  of 
the  statute.'  In  La  Grill  v.  Mallard,='^  it  was  held  that  a 
person  who  contracts  to  paper  and  decorate  several  rooms 
in  a  building  and  furnishes  the  material  is  an  original  con- 
tractor. I  see  little  difference  in  the  cases,  save  in  the  rela- 
tive amounts  of  material  and  labor.  In  the  last  case  the 
'contract  was  to  decorate  as  well  as  to  hang  paper,  and  fur- 
ther, the  defendant  promised  to  pay  for  the  labor  in  decorat- 

""  .Sec  '•Definition,"  §§  45  ct  seq.,  ante. 

»'  113  Gal.  337,  338,  45  Pac.  Rep.  684,  54  Am.  St.  Rep.  354. 

""   91  Cal.  136.  27  Pac.  Rep.  594. 

"■  90  Cal.  373,  27  Pac.  Rep.  294. 


§  60  mechanics'  liens.  64 

ing  the  building.  The  material  nseJ  in  decorating  a  room 
may  be  very  trifling  in  comparison  to  the  labor.  The  main 
point  discussed  in  La  Grill  v.  Mallard  was,  whether  an 
implied  contract  to  pay  was  such  a  contract  as  is  specified 
in  the  mechanic's-lien  law.  The  labor  required  to  place  the 
engines  and  machinery  in  proper  position,  in  the  case  of 
Hincldey  v.  Field's  Biscuit  and  Cracker  Co.,  was  evidently 
much  greater  than  the  labor  performed  in  La  Grill  v.  Mallard, 
but,  relatively  to  the  material  furnished,  it  was  much  less. 
In  the  one  case  the  material  was  not  only  the  principal 
thing,  but  compared  to  it  the  work  was  trifling.  In  the  other 
the  work  was  the  important  matter."  ^^ 

A  contract  to  convert  an  ice-works  into  a  new  system  of 
ice-making,  and  to  furnish  certain  material  therefor,  con- 
sisting of  a  number  of  tanks,  and  the  proper  circulating- 
pumps  and  connecting-pipes  and  connecting-shafts  and  pul- 
leys, the  owner  to  furnish  the  foundations,  water-wheel  and 
its  settings,  tail-race,  and  pulleys  for  transmitting  power, 
and  all  freights  and  cartages,  was  held  to  be  for  material.-'* 
It  was  said  by  the  court :  "  In  Hinckley  v.  Field's  Biscuit  and 

3^  In  Hinckley  v.  Field's  B.  &  C.  Co.,  91  Cal.  136,  140,  27  Pac.  Rep.  594, 
it  was  held  that  the  contract  was  essentially  one  to  furnish  materials 
for  a  factory,  and  not  a  building  contract.  This  principle  was  fol- 
lowed with  approval  in  Roebling's  Sons  Co.  v.  Humboldt  E.  L.  &  P.  Co., 
112  Cal.  288,  291,  44  Pac.  Rep.  568.  See  Donahue  v.  Cromartie,  21  Cal. 
81,  86.  In  Bennett  v.  Davis,  113  Cal.  337,  45  Pac.  Rep.  684,  54  Am.  St. 
Rep.  354,  the  earlier  case  of  Roebling's  Sons  Co.  v.  Humboldt  E.  L.  & 
P.  Co.,  112  Cal.  288,  44  Pac.  Rep.  56S,  was  not  noticed.  The  last- 
mentioned  case  seems  to  have  also  followed  the  rule  laid  down  in 
Hinckley  v.  Field's  B.  &  C.  Co.,  supra,  that  where  the  contract  is 
essentially  one  to  furnish  materials,  it  will  not  be  held  the  contract 
of  an  original  contractor.  See  also  Baird  v.  Peall,  92  Cal.  235,  237,  28 
Pac.  Rep.  285  (contract  to  paint  a  building  and  furnish  materials: 
held,  original  contractor);  and  see  "Nature  of  Labor,"  §§130  et  seq., 
post.     See  also  Flynn  v.  Dougherty,  91  Cal.  669,  27  Pac.  Rep.   1080. 

^  Bryson  v.  McCone,  121  Cal.  153,  53  Pac.  Rep.  637. 

Nevada.  Where  claimant  contracted  with  the  owner  of  a  mine  to 
furnish  mining  machinery,  appliances,  and  materials,  and  install  the 
same  in  a  mill  to  be  erected  at  the  mine  by  the  owner,  under  §  3885, 
Cutting's  Comp.  La'ws,  claimant  was  an  original  contractor,  and  not  a 
material-man:  Salt  Lake  H.  Co.  v.  Chainman  M.  &  E.  Co.,  128  Fed.  Rep. 
509,  s.  c.  137   Fed.  Rep.   632. 

Utah.  See  Utah  L.  Co.  v.  James,  25  Utah  434,  71  Pac.  Rep.  986,  in 
which  the  contract  of  tlie  owner's  material-man  was  held  to  be  a 
building  contract,  to  which  the  doctrine  of  caveat  emptor  did  not  apply. 


65  ORIGIN Ali    CONTRACTORS.  §  60 

Cracker  Co..'*  ...  it  was  held  that  the  word  '  contractor/ 
as  used  in  that  section, ■*"  does  not  apply  to  one  who  contracts 
to  furnish  material  only.  .  .  .  The  case  went  off  upon  a 
demurrer  to  the  complaint,  in  which  it  appeared  that  the 
claimant  contracted  to  construct  at  its  own  works,  and 
deliver  and  put  in  place,  on  foundations  to  be  prepared  by 
the  owner,  a  complete  steam  plant,  machinery,  and  pump, 
the  several  parts  of  which  were  enumerated  in  the  com- 
plaint. .  .  .  This  entire  steam  plant  was  to  be  put  up  on 
foundations  prepared  by  the  owner,  and  also  connections 
for  steam,  water,  and  exhaust,  made  ready  for  use.  That 
was  certainly  as  much  of  a  structure  as  that  contracted  for 
in  this  case.  The  only  apparent  difference  pointed  out  by 
defendants  is,  that  in  this  case  the  tanks  were  in  fact  built 
on  the  premises,  and  the  woodwork  in  the  brine-tank  was 
sublet.  There  was  nothing  in  the  contract,  however,  as  to 
where  they  should  be  made,  and  all  might  have  been  made 
at  the  shops,  and  brought  to  the  premises  ready  to  be  set  up. 
And  when  put  up  they  only  constituted  a  machine  to  be 
used  in  the  building  where  they  were  to  be  placed.  In  the 
case  above  cited  it  was  held  that  the  work  done  in  placing 
the  machinery  in  position,  ready  to  be  used,  was  but  the 
completion  of  the  contract  to  deliver.  A  similar  ruling  was 
made  in  Roebling's  Sons  Co.  v.  Humboldt  Electric  Light  and 
Power  Company.*^  There  the  contract  was  to  set  up  in 
defendant's  building  a  complete  electrical  plant,  consisting  of 
dynamos,  converters,  switchboards,  lamps,  etc.,  with  neces- 
sary wiring  and  connections.  In  that  case,  it  might  have  been 
argued  plausibly  that  the  plant  was  made  on  the  premises. 
Much  of  the  machinery  and  materials,  such  as  the  wire,  for 
instance,  was  as  characterless  as  the  Oregon  ship-timber,  the 
bolts  and  steel  plates  used  by  the  defendants  in  the  construc- 
tion of  the  tanks.  Yet,  it  was  held  there,  too,  that  putting 
up  the  machinery  was  but  a  part  of  the  agreement  to  deliver 
material.    Questions  of  this  character  are  often  very  difficult, 

»  91  Cal.  136,   27  Pac.  Rep.   594. 
*"  Kerr's  Cyc.  Code  Civ.  rroc,  §  1183. 
"  112  Cal.  289,  44  Pac.  Rep.  568. 
Mech.  Liens  —  5 


§  61  mechanics'  liens.  66 

—  though,  as  pointed  out  in  Bennett  v.  Davis,*^  they  are  not 
altogether  new.  —  being  quite  similar  to  a  much-vexed  ques- 
tion which  sometimes  arose  under  the  statute  of  frauds,  — 
the  question  as  to  whether  a  certain  agreement  was  to  manu- 
facture or  sell  goods.  I  think  this  case  is  clearly  within 
the  rule  laid  down  in  Hinckley  v.  Field's  Biscuit  and  Cracker 
Co.,  and  also  in  Eoebling's  Sons  Co.  v.  Humboldt  Electric 
Light  and  Power  Company."  *^ 

§  61.  General  rights  of  original  contractors.  As  against 
person  who  "  caused  "  the  improvement  to  be  made.**  Except 
as  modified  by  statute,  the  rights  of  the  original  contractor, 
as  against  his  employer,  or  the  person  who  "  caused  the 
improvement  to  be  made,"  are  the  same  as  at  common  law. 
Thus  the  contractor  has  the  right  of  personal  action  against 
such  person.*^ 

Upon  breach  of  contract  by  the  employer,  preventing  the 
contractor  from  completing  performance  of  the  contract,  if 
it  would  have  cost  the  contractor  the  full  unpaid  balance 
to  complete  the  contract,  it  would  not  appear  that  he  was 

*-  113  Cal.  337,  45  Pac.  Rep.  684. 

'-  Bryson  v.  McCone,  121  Cal.  153,  53  Pac.  Rep.  637. 

"  See  "Obligation  of  Owner,"  §§523  et  seq.,  post;  "Notice,"  §§547 
et  seq.,  post;  "Release,"  §§634  et  seq.,  post;  and  "Agency,"  §§572  et 
seq.,  post. 

Colorado.  Contractor  on  public  improvement:  See  Denver  v.  Hindry 
(Colo.),  90  Pac.  Rep.  1028,  1029. 

"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1197,  and  note;  Perry  v.  Quacken- 
bush,  105  Cal.  299,  308,  38  Pac.  Rep.  740. 

See  "  Relation  of  Lien  to  the  Debt,"  §  20,  ante;  "  Cumulative  Reme- 
dies," §§638  et  seq..  post;    "Decree,"  ch.  xl,  post. 

See  also  authorities  in  note  3  Am.  &  Eng.  Ann.  Cas.  1100. 

His  rights  upon  performance  are  elsewhere  discussed:  See  "Per- 
formance," §§334  et  seq.,  354,  post;  "Obligations  of  Owner,"  §§523  et 
seq.,  post;    also  Marchant  v.  Hayes,  117  Cal.  669,  671,  49  Pac.  Rep.  840. 

Colorado.  The  contractor  has  also  an  action  for  damages  for  delay 
and  breach  of  contract,  and  he  is  not  required  to  p,ssert  this  right  in 
any  particular  time,  nor  is  he  estopped  from  saying  that  the  contract 
has  not  been  performed  according  to  its  terms,  because  he  has  not 
made  objection  to  the  breach:  Florence  O.  &  R.  Co.  v.  Reeves,  13  Colo. 
App.  95,  56  Pac.  Rep.  674. 

Washington.  Where  the  contract  provides  that  the  owner  may  per- 
form work  that  the  contractor  has  neglected  to  perform,  the  latter 
may  foreclose  a  lien  for  the  contract  price,  the  cost  of  the  work  done 
by  the  owner  being  deducted:  Sweatt  v.  Hunt,  42  Wash.  96,  84  Pac. 
Rep.  1  (there  was  no  abandonment  of  the  contract). 


67  ORIGINAL   CONTRACTORS.  §  61 

damaged  by  being  prevented  from  completing  it,  unless  by 
the  loss  of  the  profit  he  would  have  made  upon  his  own 
labor.*« 

Under  a  valid  contract,  "  the  contractor  shall  be  entitled 
to  recover  upon  a  lien  filed  by  him  only  such  amount  as  may 
be  due  to  him  according  to  the  terms  of  his  contract,  after 
deducting  all  claims  of  other  parties  for  work  done  and 
materials  furnished  " ;  *'  and  if  nothing  is  due  to  him  after 
such  deductions,  he  cannot  recover  costs,  attorneys'  fees,  or 
interest.*^ 

Under  void  contract.  If  the  original  contract  is  void  for 
want  of  proper  record,  the  original  contractor,  under  the 
California  statute,  is  not  entitled  to  a  lien  for  the  value  of 
the  work  done  thereunder.*^ 

"  Gamache  v.  South  School  Dist.  of  San  Joaquin,  133  Cal.  145,  148, 
65  Pac.  Rep.  301. 

Prevention:  Cox  v.  Western  Pac.  R.  Co.,  47  Cal.  S7,  89.  See  also 
"Abandonment,"  §§358   et  seq.,  post. 

"  Kerr's  Cye.  Code  Civ.  Proc.,  §1193;  Stimson  v.  Dunham,  C.  &  H. 
Co.,  146  Cal.  281,  79  Pac.  Rep.  968. 

Alaska.      Civ.    Code    1900,    §  272. 

IVew  Mexico.     Conip.  Laws  1897,  §  2227. 

Utali.  Rev.  Stats.,  §1373;  Morrison,  Merrill  &  Co.  v.  W^illard,  17 
Utah  306,  53  Pac.  Rep.  832. 

Wasliingrton.  Pierce's  Code,  §  6111.  But  a  void  judgment  on  a  sub- 
claimant's  claim  should  not  be  deducted  from  the  contractor's  claim, 
under  Ballinger's  Ann.  Codes  and  Stats.,  §5909:  Powell  v.  Nolan,  27 
Wash.  318,  67  Pac.  Rep.  712,  719. 

Tlie  orig^inal  contractor  is  entitled  to  a  lien,  although  he  performs 
no  actual  labor  or  furnishes  no  material  for  the  building,  but  only 
oversaw  the  construction;  and  being  primarily  liable  to  his  material- 
man, he  is  entitled  to  claim  a  lien  for  the  material,  the  same  as  though 
it  had  been  furnished  by  himself:  Powell  v.  Nolan,  27  Wash.  318,  67 
Pac.  Rep.  712,  719. 

"  Stimson  v.  Dunham,   C.  &  H.  Co.,  146  Cal.  281,  79  Pac.  Rep.  968. 

AVasliington.  Where  the  owners,  at  the  contractor's  request,  prom- 
ised, when  nothing  was  due  the  contractor,  but  failed,  to  pay  the 
contractor's  subclaimants,  the  costs  of  subclaimants'  actions  should 
not  be  deducted  from  the  contractor's  claim:  Powell  v.  Nolan,  27  Wash. 
318,  67  Pac.  Rep.  712,  719. 

"  McClain  v.  Plutton,  131  Cal.  132,  142,  61  Pac.  Rep.  273,  s.  c.  63  Pac. 
Rep.  182,  622;  Morris  v.  Wilson,  97  Cal.  644,  32  Pac.  Rep.  801;  Spinney 
v.  Griffith,  98  Cal.  149,  154,  32  Pac.  Rep.  974;  Marchant  v.  Hayes,  117 
Cal.   669,   671,   49  Pac.  Rep.  840. 

See  "Void  Contract,"  §§315  et  seq.,  post;  "Cumulative  Remedies," 
§§638  et  seq.,  post;  "Rights  of  Owner,"  §§510  et  seq.,  post;  and 
"Obligations  of  Owner,"  §§523   et  seq.,  post. 

Washington.  Where,  by  a  provision  of  the  contract,  the  contractor 
was    obliged,    upon    receiving   written    authority    from    the    architect. 


§§  62,  63  mechanics"  liens.  68 

Voluntary  payments  made  by  the  owner,  which  he  had 
no  right  to  make,  for  instance,  a  payment  in  excess  of  his 
legal  liability,  cannot  be  deducted  from  the  contractor's 
claim. ^° 

§  62.  Same.  As  against  other  persons  in  privity  with 
him.  If  the  subcontractor  fails  to  complete  his  subcontract, 
the  original  contractor  may  complete  the  same  and  deduct 
the  expense  from  the  subcontract  price ;  ^^  and,  with  the 
consent  of  the  subcontractor,  the  original  contractor  has  the 
right  to  pay  the  material-men  who  furnished  materials  to 
the  subcontractor,  and  to  direct  the  application  of  the  pay- 
ment to  that  purpose.^"  His  lien  is  paid  out  of  the  proceeds 
of  the  property  after  the  liens  of  all  his  sub  claimants  have 
been  paid.^^ 

§  63.  Same.  As  against  other  persons.  The  original 
contractor's  lien  is  preferred  to  any  other  lien,  mortgage, 
or  other  encumbrance  which  may  have  attached  subsequently 
to  the  time  when  the  building,  improvement,  or  structure 
may  have  been  commenced  or  work  done ;  also,  to  any  of 
"which  he  had  no  notice,  and  which  was  unrecorded  at  the 
time  the  building,  improvement,  or  structure  was  commenced 
or  work  done;^*  and  his  claim  will  be  paid  in  preference 
to  the  demands  of  the  general  creditors  of  the  contractor, 
which  are  unsecured,  upon  the  balance  of  the  fund  after 
payment  of  other  lien-holders.^^ 

approved  by  the  owner,  to  perform  any  Tvork  demanded  by  the  owner 
and  architect  in  the  aUeration,  modification,  or  addition,  without  the 
approval  of  the  owner,  the  architect's  authority  would  not  justify  the 
contractor  in  deviating  from  the  plans  and  specifications:  De  Mattos 
V.  Jordan,  15  Wash.  378,  385,  46  Pac.  Rep.  402. 

»"  Brill  v.  De  Turk,  130  Cal.  241,  244,  62  Pac.  Rep.  462. 

"  See  Pacific  R.  M.  Co.  v.  English,  118  Cal.  123,  1?0,  50  Pac.  Rep.  383; 
Pohlman  v.  Wilcox,  146  Cal.  440,  80  Pac.  Rep.  625. 

See  "  Cumulative  Remedies,"  §§  638  et  seq.,  post. 

5=  Petersen  v.  Shain    (Cal.,   Aug.   16,   1893),   33  Pac.  Rep.   1086. 

^  Kerr's  Cyc.  Code  Civ.  Proe.,  §  1194.  See  "  Priorities,"  §§  486  et  seq., 
post. 

=♦  Kerr's  Cyc.  Code  Civ.  Proe.,  §  1186.      See  §§  49   et  seq.,  ante. 

»»  Kennedy  &  S.  L.  Co.  v.  Priet,  115  Cal.  98,  99,  46  Pac.  Rep.  903; 
Kennedy  &  S.  L.  Co.  v.  Dusenbery,  116  Cal.  124,  126,  47  Pac.  Rep.  1008. 

See  "General  Creditors,"  §§601  et  seq.,  post. 


69  ORIGINAI;    CONTRACTORS.  §  64 

^  64.  General  obligations  of  original  contractors.'"  To 
person  causing  improvement  to  be  made.  Correlative  with 
his  right  to  recover  under  a  valid  contract  is  the  duty  of  the 
original  contractor  to  carry  out  the  contract  in  accordance 
with  its  terms."  unless  such  performance  is  excused  by  the 
acts  of  the  owner  ;^^  and  where  the  owner  takes  possession 
and  ousts  the  contractor  from  the  building,  without  cause, 
and  refuses  to  permit  him  to  complete  the  building  according 
to  the  contract,  and  appropriates  to  his  own  use  the  material 
on  hand  and  provided  to  be  used  for  the  construction,  the 
contractor  may  consider  such  contract  as  rescinded.^''    But 

^  See  "Correlative  Rights  of  Owner,"  §§510  et  seq.,  post  (126); 
"Subcontractor,"  §§70  et  seq.,  post;  "Material-man,"  §101,  post; 
"  Performance,"  §§  334  et  seq.,  post;    "Abandonment,"  §  358,  post. 

"  See  "Cumulative  Remedies,"  §§638  et  seq.,  post;  also  authorities 
in  note  3  Am.  &  Eng.  Ann.  Cas.  1100;  and  "Performance,"  §§334  et 
seq.,  post. 

Oregon.  A  building  contractor  who  is  required  by  the  contract  to 
keep  the  brickwork  straight  and  plumb  is  not  liable  for  defects  in 
that  respect,  caused  by  building  an  extra  story,  under  a  modification 
of  the  contract,  without  materially  strengthening  the  foundation: 
Chamberlain  v.  Hibbard,  26  Greg.  428,  38  Pac.  Rep.   437. 

The  measure  of  damages  for  failure  to  do  the  work  or  furnish  the 
materials  contracted  for  is  the  difference  between  the  value  of  the 
class  of  work  or  materials  contracted  for  and  that  furnished:  Cham- 
berlain v.  Hibbard,  supra. 

Utah.     Utah  L.  Co.  v.  James,  25  Utah  434,  71  Pac.  Rep.  986. 

Washington.     Ekstrand  v.  Earth,  41  "Wash.  321,  83  Pac.  Rep.  305. 

One  who  agrees  to  huild  a  building  abandoned  by  tlie  original  eon- 
tractor  has  a  reasonable  time  to  complete  it.  where  no  date  is  specified 
In  his  agreement,  although  the  original  contract  required  it  to  be  com- 
pleted at  a  specified  time:  Brodek  v.  Farnum,  11  Wash.  565,  40  Pac. 
Rep.  189. 

Wliere  payment  is  made  on  building  contract  subsequent  to  expira- 
tion of  time  agreed  upon  for  completion,  the  owner  is  not  entitled  to 
damages  for  loss  of  rents  prior  to  the  date  of  such  abandonment  by 
him;  no  objection  having  been  made  to  the  rate  of  progression  of  the 
building,  such  payment  was  held  a  waiver:  Brodek  v.  Farnum,  11 
Wash.   565,   40   Pac.   Rep.   189. 

='  Griffith  v.  Happersberger,  86  Cal.  605,  613,  25  Pac.  Rep.  137,  487. 
See  also  "  Certificates,"  §§  238  et  seq.,  post. 

Washington.  Or  his  agent:  Olson  v.  Snake  River  Val.  R.  Co..  22 
Wash.  139.  60  Pac.  Rep.  156. 

Where,  by  the  terms  of  a  building  contract,  the  owner  is  required 
to  provide  the  foundation  of  the  building,  which  he  undertakes  to  do, 
he  cannot  recover  damages  from  the  contractor  for  making  the 
ground-floor  above  the  street  grade,  when  such  defect  is  the  result  of 
the  foundation  being  too  high:  Brodek  v.  Farnum,  11  Wash.  565,  40 
Pac.  Rep.   189. 

»  Adams  v.  Burbank,   103   Cal.   646,   649,   37    Pac.   Rep.   640. 


§  64  mechanics'  liens.  70 

where  the  contractor  substantially  fails  to  perform  his  con- 
tract, he  cannot  recover  for  the  reasonable  value  of  his 
work  and  materials.*" 

It  is  also  the  contractor's  duty  to  pay  off  all  the  indebted- 
ness which  he  has  incurred  for  labor  or  materials  in  per- 
forming the  contract,  and  the  interest,  costs,  and  counsel 
fees  recovered  against  the  owner  or  the  property  in  fore- 
closure suits ;  *^  and  in  all  cases  where  a  lien  is  filed  under  the 
chapter  on  mechanics'  liens  ®^  for  work  done  or  materials 
furnished  to  him,  to  defend  any  action  brought  thereon,  at 
his  own  expense,  whether  the  contract  is  valid  or  void.®' 
He  must  also  ipay  the  owner  the  amount  of  any  judgment 
and  costs,  in  actions  by  subclaimants,  above  the  amount  due 
to  him  from  the  owner,  and  if  the  owner  has  settled  with 
the  contractor  in  full,  the  contractor  must  repay  the  amount 
so  paid  in  excess  of  the  contract  price,  and  for  which  the 
contractor  was  originally  the  party  liable.*^* 

«"  Laidlaw  v.  Marye,  133  Cal.  170,  65  Pac.  Rep.  391. 

"1  Kerr's  Cyc.  Code  Civ.  Proc,  §  1193;  Clancy  v.  Plover,  107  Cal.  272, 
275,  40  Pac.  Rep.  394;  Covell  v.  Washburn,  91  Cal.  560,  563,  27  Pac.  Rep. 
859;   Whittier  v.  Wilbur,  48  Cal.  175,  178. 

Arixona.     Rev.   Stats.   1901,  §  2901. 

Nevada.     Cutting's    Comp.    Laws    1900,    §  3890. 

New    Mexico.     Comp.    Laws    1897,    §  2227. 

Washington.     Pierce's   Code,   §  6111. 

"  Kerr's   Cyc.   Code   Civ.   Proc.,   §§1183-1203 a. 

«3  Kerr's  Cyc.  Code  Civ.  Proc,  §1193;  Clancy  v.  Plover,  107  Cal. 
272,  275,  40  Pac.  Rep.  394;  Macomber  v.  Bigelow,  123  Cal.  532,  56  Pac. 
Rep.   449.     See  Covell  v.  Washburn,   91  Cal.   560,   27  Pac.  Rep.   859. 

Alaslva.  Civ.  Code  1900,  §  272;  act  of  Congress  June  6,  1900,  ch. 
xxviii. 

Arizona.     Rev.    Stats.    1901,    §  2901. 

Nevada.      Cutting's  Comp.   Laws   1900,   §  3890. 

New    Mexico.     Comp.    Laws    1897,    §  2227. 

Washington.     Pierce's    Code,    §  6111. 

W-yoming.     Rev.    Stats.    1899,    §  2906. 

•*  Kerr's  Cyc.  Code  Civ.  Proc,  §  1193,  and  note. 

In  Boas  v.  Maioney,  138  Cal.  105,  107,  70  Pac.  Rep.  1004,  it  was 
said  (obiter)  that  the  owner  could  hold  the  contractor  liable  for  the 
liens  filed  against  the  owner's  property  in  excess  of  the  contract 
price,  when  the  contract  is  void. 

Hawaii.  He  is  not  liable  for  the  wages  of  an  inspector  voluntarily 
employed  by  the  owner  for  his  own  benefit,  even  after  the  time 
when  the  contract  should  have  been  completed:  American-Hawaiian 
Eng.  &  Cons.  Co.  v.  Territory,  17  Hawn.   195. 


71  ORIGINAL    CONTRACTORS.  §  65 

§  65.  Same.  To  other  persons.  The  liability  of  the  origi- 
nal contractor  to  the  person  who  performed  labor  for  or 
furnished  materials  to  subcontractors,  under  subcontracts, 
seems  to  depend  on  the  general  principles  of  contract,  and, 
broadly  speaking,  follows  the  analogies  of  the  general  law 
suggested  bj^  the  liability  of  the  owner  to  the  subcon- 
tractor."^ The  creditors  of  the  original  contractor  are  enti- 
tled, under  the  general  principles  of  contract,  to  a  money 
judgment  against  him,  whether  they  have  a  lien  on  the 
building  or  not.*^^  He  is  under  the  primary  obligation  to 
pay  his  own  subclaimants,®'  but,  in  the  absence  of  privity, 
he  is  not  personally  liable  to  claimants  under  such  sub- 
claimants."® 

Duty  to  file  contract  for  record.  It  is  the  duty  of  the 
contractor,  as  well  as  of  the  owner,  to  properly  file  the 
contract,  containing  the  essentials  required  by  the  statute, 
or  a  sufficient  memorandum  thereof,  in  the  recorder's  office 
of  the  county,  or  city  and  county,  where  the  property  is 
situated,  before  the  work  is  commenced,  when  the  agreed 
contract  price  exceeds  one  thousand  dollars.''^ 

Cannot  waive  rights  when.  It  is  not  competent  for  the 
contractor,  by  any  term  of  his  contract,  or  otherwise,  to 
waive,  affect,  or  impair  the  liens  of  other  persons,  whether 
with  or  without  notice,  except  by  their  written  consent.'^" 

"  But  see  Davies-Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641,  643, 
22   Pac.  Rep.   860. 

«8  Kennedy-Shaw  L.  Co.  v.  Priet,  113  Cal.  291,  293,  45  Pac.  Rep.  336; 
McMenomy  v.   White,   115  Cal.   339,   343,  47   Pac.  Rep.   109. 

See  "Cumulative  Remedies,"  §§638  et  seq.,  post;  "Decree,"  ch.  xl, 
post. 

"  Mannix   v.   Tryon    (Cal.   Sup.),   Sept.    19,    1907. 

"x  Kruse  v.  Wilson    (Cal.  App.),  84  Pac.   Rep.  442. 

««  Kerr's  Cyc.  Code  Civ.  Proc,  §1183;  Morris  v.  Wilson,  97  Cal.  644, 
645,  32  Pac.  Rep.  801;  Marchant  v.  Hayes,  117  Cal.  669,  49  Pac.  Rep. 
840. 

'"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1201.  See  Shaver  v.  Murdock,  36 
Cal.   293,   298    (1862);    Whittier  v.  Wilbur,   48   Cal.   175,  178    (1868). 

Hawaii.     See  Allen  v.   Redward,    10  Hawn,   151,   157. 


66  mechanics'  liens.  72 


CHAPTER    V. 

SUBCONTRACTORS. 

§  66.  Definition  of  "  subcontractor." 

§  67.  Different  degrees  of  subcontractors. 

§  68.  Distinction.     Subcontractor  and  material -man. 

§  69.  Same.     Subcontractor  and  employees  of  material-man. 

§  70.  General  rights  of  subcontractors.     Constitution. 

§  71.  Same.     Valid  contract. 

§  72.  Same.     Void  contract. 

§  73.  Same.     Personal  rights. 

§  74.  Same.     Amount  of  claim. 

§  75.  Same.     Priorities. 

§  76.  General  obligations  of  subcontractors. 

§  66.  Definition  of  "  subcontractor."  Independent!}-  of  a 
statutory  definition,  a  subcontractor  may  be  defined  to  be 
a  person  who,  under  the  original  contractor,  or  any  other 
subcontractor,  performs  the  whole  or  a  part  of  the  work 
which  such  original  contractor  has  undertaken  to  perform, 
with  or  without  furnishing  materials  therefor,  which  con- 
tract, if  entered  into  with  the  party  who  caused  the  improve- 
ment to  be  made,  would  constitute  the  subcontractor  an 
original  contractor.^  As  thus  defined,  in  the  absence  o'f 
statutory  limitations  there   seems  to  be  no  legal  limit,   in 

'  See  definition  of  "Original  Contractor,"  §§  45-60,  ante. 

Distinction  niu.st  be  made  between  subcontractor  and  assincnee  of 
original  contractor,  who,  by  novation,  steps  into  the  shoes  of  tlie 
original  contractor:  See  "Novation,"  §333,  post,  and  Downing  v. 
Graves,  55  Cal.  544,  548. 

Colorado.  Schradsky  v.  Dunklee,  9  Colo.  App.  394,  397,  48  Pac.  Plep. 
666;  Denver  H.  Co.  v.  Croke,  4  Colo.  App.  530,  36  Pac.  Rep.  624.  The 
statute  includes  "  material-man  "  within  meaning  of  "  subcontractor." 

Oklahoma.     But  see  Ryndak  v.  Seawell,  13  Okl.  737,*  76  Pac.  Rep.  170. 

Oregon.  A  subcontractor  is  one  who  has  entered  into  a  contract, 
express  or  implied,  for  the  performance  of  an  act  with  a  person  who 
has  already  contracted  to  perform  it,  there  being  no  privity  between 
the  owner  and  subcontractor:  Smith  v.  Wilcox,  44  Qreg.  323,  74  Pac. 
Rep.   708;    rehearing  denied,   75   Pac.   Rep.   710. 

Utah.  All  but  original  contractors  are  subcontractors:  Rev.  Stats., 
i  1383. 

As  to  subcontractor's  lien,  see  Teahen.  v.  Nelson,  6  Utah  363,  23 
Pac.  Rep.  764    (1888). 

\Vashington.     See  Pacific  R.  M.  Co.  v.  Hamilton,  61  Fed.  Rep.  476. 


73  SUBCONTRACTORS.  §§  67,  68 

California,  to  the  degree  of  removal  of  the  subcontractor 
from  the  person  who  "  caused  the  improvement  to  be  made  " ; 
for  each  subcontractor  may  subcontract  with  others,  and  thus 
create  rights  in  them  subordinate  to  his  own.- 

§  67.  Different  degrees  of  subcontractors.  In  this  work, 
the  person  who  enters  into  a  subcontract  with  the  original 
contractor  will  be  designated  as  a  subcontractor  in  the  first 
degree ;  the  person  who  enters  into  a  subcontract  with  such 
subcontractor  will  be  denominated  a  subcontractor  in  the 
second  degree;   and  so  on." 

Void  contract.  A  subcontractor  does  not  contract  directly 
with  the  owner,  and  even  if  the  original  contract  is  void, 
it  does  not  convert  a  subcontractor  in  the  first  degree  into 
an  original  contractor.* 

§  68.  Distinction.  Subcontractor  and  material-man.  Sub- 
contractors must  be  carefully  distinguished  from  material- 
men, as  the  distinction  is  of  great  importance  relative  to 
the  rights  of  persons  dealing  with  them,  and  the  extent  and 

*  Colorado.  Contra:  Sayre-Newton  L.  Co.  v.  Union  Bank,  6  Colo. 
App.   541,   41   Pac.   Rep.   844. 

Utah.     See  Teahen  v.  Nelson,  6  Utah    363,  23  Pac.  Rep.  764  (1888). 

Washington.  Owner  as  subcontractor:  See  Drumheller  v.  American 
S.  Co.,  30  Wash.  530,  71  Pac.  Rep.  25. 

'  Colorado.  See  Sayre-Newton  L.  Co.  v.  Union  Bank,  6  Colo.  App. 
541,  41  Pac.  Rep.  844. 

Montana.  Subcontractor  of  subcontractor  is  entitled  to  a  lien: 
Eccleston  v.  Hetting,  17  Mont.  88,  42  Pac.  Rep.  105;  Duignan  v. 
Montana  Club,  16  Mont.  189,  40  Pac.  Rep.  294  (1887),  holding  that  a 
subcontractor  in  any  degree  has  a  lien.  See  Merrigan  v.  English, 
9  Mont.  113,  22  Pac.  Rep.  454,  5  L.  R.  A.  837. 

Oklahoma.  Lien  allowed  where  it  appeared  that  claimant  was  the 
original  contractor's  subcontractor:  Ball  v.  Houston,  11  Okla.  235, 
66  Pac.  Rep.  358,  distingiii.shius  Darlington-Miller  L.  Co.  v.  Lobsitz, 
4  Okla.  355,  46  Pac.  Rep.  481. 

*  Coss  V.  MacDonougli,  111  Cal.  662,  663,  667,  44  Pac.  Rep.  325; 
Davis  V.  MacDonough,  109  Cal.  547,  549,  42  Pac.  Rep.  450. 

See  "Contractor,"  §§45-65,  ante;  "Void  Contracts,"  §§315  et  seq., 
post;  "  Nature  of  Work,"  §  130,  post. 

Privity  of  contract  betv\-een  subcontractor  and  owner  is  wanting: 
Macomber  v.  Bigelow,  123  Cal.  532,   56  Pac.  Rep.   449. 

See  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1183,   and  note  pars.   122-126. 

New  Mexico.  Tliis  court,  however,  uses  the  follovying  language: 
"The  statute  expressly  makes  the  defendant  (owner)  liable  for  a  debt 
he  never  contracted.  He  is  in  privity  of  contract,  by  force  of  the 
statute,  with  every  laborer  who  works  upon  his  building":  Hobbs 
V.  Spiegelberg,  3  N.  M.  322,  5  Pac.  Rep.  529. 


§§69,70  mechanics'  LIENS.  74 

priority  of  their  liens ;  and  the  same  general  principles  that 
apply  in  the  determination  of  the  distinction  between  origi- 
nal contractors  and  material-men  would  seem  to  be  equally 
applicable  here.  Thus  one  agreeing  to  furnish  the  original 
contractor  all  the  millwork  needed  to  construct  a  building, 
consisting  of  manufactured  material,  to  be  delivered  by  him 
at  the  building,  is  a  material-man  only,  and  not  a  subcon- 
tractor." 

§  69,  Same.  Subcontractor  and  employees  of  material- 
man. The  person  who  is  employed  by  a  material-man  in  the 
preparation  of  the  materials  which  he  furnishes,  or  the  party 
from  whom  he  obtains  them,  is  not  a  subcontractor,  within 
the  meaning  of  the  law,"  notwithstanding  the  apparently 
broad  provision  of  the  code,'  that  "  all  persons  .  .  .  furnish- 
ing material  to  be  used  in  the  construction,  alteration,  .  .  . 
of  a  building  .  .  .  shall  have  a  lien  ,  .  .  for  the  value  of 
such  .  .  .  material  furnished." 

§  70.  General  rights  of  subcontractors.^  Constitution. 
The  lien  of  a  subcontractor,"  like  that  of  the  original  con- 
tractor, is  not  expressly,  nor  in  terms,  provided  for  in  the 

5  Wilson  V.  Hind,  113  Cal.  357,  359,  45  Pac.  Rep.  695. 

See  "  Distinction,"  §  60,  ante. 

In  the  case  of  Petersen  v.  Shaln  (Cal.),  33  Pac.  Rep.  1086,  the  person 
who  furnished  material  to  a  subcontractor  is  rather  loosely  called  a 
"  subcontractor  under  the  subcontractor,"  although  elsewhere  in  the 
opinion  he  is  properly  designated  as  a  "  material-man." 

Colorado.     See  note,  §  66,  ante. 

Hawaii.     See  Hackfeld  v.  Hilo  R.  Co.,  14  Hawn.  448,  452. 

Montana.     See  Eccleston  v.  Hetting,  17  Mont.  88,  42  Pac.  Rep.  105. 

Oklahoma.     But  see  Ryndak  v.  Seawell,  13  Okl.  737,  76  Pac.  Rep.  170. 

«  Sparks  v.  Butte  County  G.  M.  Co.,  55  Cal.  389,  391  (dictum). 
Approved  in  Roebling's  Sons  Co.  v.  Humboldt  E.  L.  &  P.  Co.,  112  Cal. 
288,  292,  44  Pac.  Rep.  568,  and  Inman  v.  Henderson,  29  Oreg.  116,  120, 
45  Pac.   Rep.   300. 

See  "Material-men,"  §§77  et  seq.,  post. 

'  See  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1183,  and  note. 

s  Lien   of  subcontractor:    See   note  7   L.  R.   A.   711. 

Colorado.  Subcontractors  and  material-men  have  no  interest  in  a 
fund  provided  by  the  contractor  for  the  purpose  of  protecting  the 
owner  against  liens  which  may  result  from  his  failure  to  make  pay- 
ments: Sayre-Newton  L...  Co.  v.  Union  Bank,  6  Colo.  App.  541,  41  Pac. 
Rep.  844. 

»  See  §  28,  ante. 


75  SUBCONTRACTORS.  §  71 

constitution    of    California;     his   ri^jhts,    except   as    changed 
by  statute,  are  as  at  the  general  law.^° 

§  71.  Same.  Valid  contract.  Where  the  original  con- 
tract is  valid,  the  rights  of  a  subcontractor,  as  to  the  extent 
of  his  lien,  are  limited  and  measured  by  the  terms  of  that 
contract;  ^^  but  where  the  contract  between  the  original 
contractor  and  his  subcontractor  does  not  incorporate  the 
terms  of  the  original  contract,  the  subcontractor,  not  being 
a  party  to  the  original  contract,  is  not,  in  the  absence  of 
fraud  on  his  part,  bound  by  its  terms  as  to  the  manner  of 
performing  the  work,  or  the  character  of  the  materials  to 
be  used ;  ^^  and  where  there  is  no  warranty  in  the  subcon- 
tract as  to  the  work,  the  subcontractor,  complying  with  the 
terms  of  his  contract  as  to  the  quality  of  the  materials  and 
its  use  in  a  workman-like  manner,  is  entitled  to  recover,  not- 
withstanding the  usual  result  of  the  use  of  the  materials 
specified  and  their  application  is  not  obtained ;  and  there  is 
no  implied  warranty  under  sections  seventeen  hundred  and 
sixty-nine  and  seventeen  hundred  and  seventy  of  the  Civil 
Code,^^  which   do  not  apply  where  an  article  is  supplied 

"  Oklahoma.  A  subcontractor  in  the  first  degree  may  recover  from 
the  original  contractor,  when  he  is  prevented  from  performing  by  the 
original  contractor,  and  he  is  not  liable  on  a  bond  given  to  the  origi- 
nal contractor:  Brock  v.  Williams,   16  Okl.   124,  82  Pac.  Rep.   922. 

Oregon.  Where  a  contractor  makes  no  application  upon  payments 
to  a  subcontractor,  although  it  is  impossible  to  show  how  much  has 
been  paid  on  each  of  two  buildings  on  the  contracts  for  which  the 
subcontractor  has  equitably  applied  the  payments,  as  he  has  a  right 
to  do,  the  lien  of  the  subcontractor  is  not  invalid:  Smith  v.  Wilcox, 
44  Greg.  323,  74  Pac.  Rep.  708. 

'■  Dingley  v.  Green,  54  Cal.  333,  335. 

See  "Valid  Contracts,"  §315,  post;  "Obligations  of  Owner,"  §§523 
et  seq.,  §  559,  post;  "  Rights  upon  Abandonment  by  Original  Con- 
tractor," §§358  et  seq.,  post;  "Obligations  of  Owner,"  §§523  et  seq., 
post;    "Lien  as  Limited  by  Contract,"  §§315  et  seq.,  §452,  post. 

Colorado.  As  to  cutting  off  rights  of  subcontractor  by  original 
contract,  see  Aste  v.  Wilson,   14  Colo.  App.   323,   59  Pac.  Rep.  846. 

Hu^vaii.  The  subcontractor  or  material-man  is  not  merely  subro- 
gated to  the  rights  of  the  original  contractor:  Pacific  H.  Co.  v. 
Lincoln,  12  Hawn.  358,  361.     See  Allen  v.  Redward,  10  Hawn.  151. 

L'tah.  Sierra  Nevada  L.  Co.  v.  Whitmore,  24  Utah  130,  66  Pac.  Rep. 
779;  Culmer  v.  Caine,  22  Utah  216,  61  Pac.  Rep.  1008,  1009.  See  Rev. 
Stats.,  §  1373. 

'-  Mannix  v.  Tryon  (Cal.  Sup.,  Sept.  19,  1907),  91  Pac.  Rep.  983; 
Howe  V.  Schmidt  (Cal.),  90  Pac.  Rep.  1056. 

"  See  Kerr's  Cye.  Civ.  Code,  §§  1769,   1770,  and   notes. 


§§  72, 73  mechanics'  liens.  76 

under  a  contract  requiring  that  it  be  made  according  to  a 
certain  plan  or  certain  specifications.^* 

§  72.  Same.  Void  contract.  Where  the  statutory  origi- 
nal contract  is  void,  or  where,  being  valid,  it  does  not  con- 
form substantiall}'  to  the  provisions  of  section  eleven  hun- 
dred and  eighty-four,  as  to  payments,  the  subcontractor  is 
deemed,  under  the  statute,  to  have  contracted  with  the 
owner,  and  may  enforce  his  lien  for  the  value  of  the  work 
or  material,  although  he  cannot  recover  against  the  owner 
personally,  there  being  no  privity  between  them.^° 

§  73.  Same.  Personal  rights.  The  right  of  personal 
action  against  the  contractor,  or  individual  liable  at  com- 
mon law,  is,  however,  preserved  to  the  subcontractor  when 
he  is  in  privity  with  such  contractor;  ^®  otherwise  not.^'    The 

"  Mannix  v.  Tryon  (Cal.  Sup.,  Sept.  19,  1907),  91  Pac.  Rep.  983. 

15  Kerr's  Cyc.  Code  Civ.  Proc,  §§  1183,  11S4,  and  notes;  KeUogg  v. 
Howes,  81  Cal.  170,  179,  22  Pac.  Rep.  509,  6  L.  R.  A.  588.  See  "  Extent 
of  Lien,"  §§  438  et  seq.,  post;  "  Cumulative  Remedies,"  §§  638  et  seq., 
post;  "Obligations  of  Owner,"  §§523  et  seq.,  post;  "Statutory  Original 
Contract,"  §§  214,  259  et  seq.,  post;  "  Payments,"  §§  269  et  seq.,  §  311,  post. 

As  to  impairment  of  subcontractors'  liens,  see  Kerr's  Cyc.  Code  Civ. 
Proc,  §1184,  and  note;  "Alteration  of  Contract,"  §§326  et  seq.,  post; 
"Waiver,"  §§627  et  seq.,  post;  "Answer,"  §§738  et  seq.,  post. 

Time  of  filing:  claim:  See  Kerr's  Cyc.  Code  Civ.  Proc,  §  1187,  note. 

As  to  rig^ht  to  intercept  moneys  in  hands  of  employer,  see  Kerr's 
Cyc.  Code  Civ.  Proc,  §1184,  note;    and  "Notice,"  §§547  et  seq.,   post. 

Colorado.  The  provision  requiring  a  record  of  the  original  contract 
under  Laws  1893,  ch.  cxvii,  p.  315,  relates  only  to  the  statutory  con- 
tract, and  those  materially  different  are  not  binding  on  subcontractors, 
nor  affect  their  rights,  independently  of  notice  or  knowledge  by  them 
of  the  terms  of  such  contracts:  Chicago  L.  Co.  v.  Newcomb,  19  Colo. 
App.   265,   74   Pac.   Rep.   786. 

"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1197,  and  note.  See  "  Cumulative 
Remedies,"  §§  638  et  seq.,  post. 

Action  on  bond,  as  to,  see  Kerr's  Cyc.  Code  Civ.  Proc,  §  1203,  and 
note;  "  Bond,"  §§  281  et  seq.,  post. 

In  case  of  a  public  building,  excavating,  or  other  mechanical  work, 
under  the  act  of  March  27,  1897,  if  the  contractor  does  not  pay  the 
subcontractor  w^ithin  thirty  days  from  the  completion  of  such  w^ork, 
the  subcontractor  may  file  a  verified  statement  with  the  commission- 
ers, managers,  or  other  oflficers,  as  mentioned  in  the  act  (§  2),  in  the 
manner  therein  specified,  and  within  ninety  days  thereafter  he  may 
commence  a  suit  upon  the  bond  filed  by  the  contractor,  under  the  pro- 
visions of  the  act  (Stats.  1897,  p.  201,  Henning's  General  Lia-«vs, 
p.    1104).      See    "Obligations    of    Original    Contractors,"    §§64,    65,    ante. 

"  See  Kruse  v.  Wilson  '(Cal.  App.),  84  Pac.  Rep.  442. 

Oregon.     See  Smith  v.  Wilcox,  44  Oreg.  323,  74  Pac.  Rep.  708,  710. 


77  SUBCONTRACTORS.  §§  74-76 

primary  obligation  to  pay  his  subcontractor  is  on  the  origi- 
nal contractor,  and  in  default  of  such  payment  the  subcon- 
tractor has  a  lien  on  the  owner's  property  to  secure  his  claim, 
against  which  it  may  be  enforced.^*  Subcontractors,  how- 
ever, have  no  right  of  personal  action  against  the  owner,  in 
the  absence  of  privity.^''  If  the  contractor's  subcontractor, 
by  his  dealings  with  his  own  subcontractors,  has  given  them 
a  right  against  him  for  a  greater  sum  than  he  can  enforce 
against  the  property,  the  loss  must  be  borne  by  himself,  when 
he  cannot  recover  from  the  original  contractor.-^ 

§  74.  Same.  Amount  of  claim.  It  is  proper  for  a  con- 
tractor to  include  in  the  claim  of  lien  the  value  of  work  done 
by  subclaimants  under  subcontractors,  but  such  subclaim- 
ants  are  not  precluded  from  filing  a  claim  of  lien  in  their 
own  behalf  by  the  contractor's  failure  to  include  such  Avork, 
since  they  cannot  know  whether  the  claim  will  be  prosecuted 
to  judgment,  the  decree  of  the  court,  however,  determining 
the  amount  which  each  should  receive.^^ 

§  75.  Same.  Priorities.  As  respects  priority,  the  lien  of 
the  subcontractor  has  preference  over  that  of  the  original 
contractor,  but  is  subordinate  to  the  constitutional  manda- 
tory liens.^^ 

§  76.  General  obligations  of  subcontractors.  The  gen- 
eral principles  applying  to  and  governing  ordinary  contracts, 

• 

"  Mannix  v.    Tryon    (Cal.    Sup.),    91   Pac.    Rep.    983. 

"  Builders'  Supply  Depot  v.  O'Connor  (Cal.),  88  Pac.  Rep.  982. 
Or  in  the  absence  of  the  statutory  garnishment. 

Montana.  Wagner  v.  St.  Peter's  Hospital,  32  Mont.  206,  79  Pac. 
Rep.  1054,  1055. 

Oklahoma.  An  agreement  by  a  subcontractor  not  to  file  a  lien  is 
sufRcient  consideration  for  the  owner's  promise  to  pay  the  claim: 
Harness  v.  McKee-Brown  L.  Co.    (Okl.),  89  Pac.   Rep.   1020. 

'■'"  Macomber  v.  Bigelow,  126  Cal.  9,  15,  58  Pac.  Rep.  312. 

"  Macomber  v.  Bigelow,  126  Cal.  9,  15,  58  Pac.  Rep.  312. 

Oregon.  See  Smith  v.  Wilcox,  44  Oreg.  323,  75  Pac.  Rep.  710,  ■.  c.  74 
Pac.  Rep.  708. 

="  Kerr's  Cyo.  Co«le  Civ.  Proc,  §  1194,  and  note. 

See  "  Priorities,  Constitutional  Provisions,"  §§  28,  37,  ante;  "  Rights 
of  Contractors,"  §  62,  ante. 


§  76  mechanics'  liens.  78 

and  determining  their  validity  or  invalidity,  are  applicable 
to  and  govern  subcontracts  under  which  a  mechanic's  lien  is 
claimed,  except  in  so  far  as  those  principles  are  modified 
by  the  statute  giving  the  right  to  the  lien.  It  is  thought 
that  the  contract  of  a  subcontractor  is  not  required  to  be  in 
writing,  and  that  he  is  not  required  to  file  it,  although  the 
contract  price  exceeds  one  thousand  dollars. 

Bound  by  contract.  Subcontractors  are  bound  by  the 
terms  of  their  contracts,^^  and  upon  failure  to  comply  there- 
with no  recovery  can  be  had,  under  the  general  principles 
of  law.2* 

The  subcontractor  in  every  degree  is  personally  liable 
to  his  own  material-man,"^^  as  well  as  to  his  own  immediate 
subcontractors.^*'  Under  a  void  statutory  original  contract, 
the  negligence  of  the  original  contractor  in  carrying  out  the 
work  does  not  affect  the  rights  of  the  subcontractor,  as  he  is 
not  responsible  for  such  negligence.^'' 

'■'^  See  Griffith  v.  Happersberger,  86  Cal,  605,  612,  25  Pac.  Rep.  137, 
487;  Dora  v.  Sellers,  27  Cal.  588,  594. 

See  "Lien  as  Limited  by  Contract,"  §§  452  et  seq.,  post. 

As  to  right  of  subcontractors,  other  than  in  the  first  degree,  or 
subcontractors'  material-men  or  laborers,  see  "  Liability  of  Owner," 
§  523,  post. 

='  Pohlman   v.   Wilcox,    146   Cal.    440,    442,    80    Pac.   Rep.    625. 

-■■  Davies-Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641,  647,  22  Pac. 
Rep.    860. 

^  See  Macomber  v.  Bigelow,   126  Cal.   9,   15,   58  Pac.   Rep.   312. 

"  Macomber  v.  Bigelow,  126  Cal.  9,  13,  58  Pac.  Rep.  312. 


79  MATEEIAL-MEN.  §  77 


CHAPTER    VI. 

MATERIAL-MEN. 

§    77.  Distinction.    Material-man,  original  contractor,  and  subcontractor. 

§    78.  Definition  of  "  material-man." 

§    79.  Who  are  not  material-men. 

§    80.  Same.     Placing  materials  in  situ. 

§    81.  Distinction  between  material-man  and  subcontractor. 

§  82.  Circumstances  under  which  lien  for  materials  is  given.  The 
contract.    Use  of  materials. 

§    83.  Same.     Contract  for  sale,  or  for  labor. 

§    84.  Same.     Formalities.     Recording  contract. 

§    85.  Same.     As  affected  by  original  contract. 

§    86.  Same.     Other  general  essentials. 

§    87.  Same.     Nature  and  manner  of  use  of  materials. 

§    88.  Same.     Definition  of  "  furnished." 

§    89.  Same.     Materials,  how  "  used." 

§    90.  Same.     Lien,  when  allowed.     Package. 

§    91.  Same.     Carriage  charges. 

§  92.  Same.  Nature  of  the  work  on  the  property  for  which  the  ma- 
terials are  furnished. 

§    93.  Same.     Alteration,  construction,  addition  to,  repair. 

§    94.  Same.     Extent  of  alteration  or  repair. 

§    95.  Same.     Fixtures. 

§    96.  Same.     In  mining  claims  and  mines. 

§    97.  Same.     Street-work,  grading,  etc. 

§  98.  Same.  Nature  of  property  for  which  material  must  be  furnished. 
Generally. 

§    99.  Same.     Mines  and  mining  claima. 

§  100.  Same.     Lien  allowed. 

§  101.  General  rights  of  material-men. 

§  102.  General  obligations  of  material-men. 

S  103.  Same.     Knowledge  of  terms  of  original  contract.    Fraud. 

§  77.  Distinction.  Material-man,  original  contractor, 
and  subcontractor.  It  is  important  to  detenniiie  whether  a 
person  furnishing  materials  is  a  material-man,  original  con- 
tractor, or  subcontractor.  A  material-man  must  be  care- 
fully distinguished  from  an  original  contractor,  not  only 
for  the  purpose  of  ascertaining  whether  the  statutory  for- 


§§  78, 79  mechanics'  liens.  80 

malities  are  necessary  for  the  contract,  but  also  to  determine 
the  time  within  which  the  lien  must  be  filed.  A  material- 
man is  to  be  distinguished  from  both  original  contractors 
and  subcontractors,  for  the  purpose  of  determining  the 
relative  rank  of  liens  and  the  rights  of  persons  entering 
into  contractual  relations  with  the  individual  in  question. 

Designation  of  material-men  herein.  In  this  work  the  one 
furnishing  material  to  the  owner,  or  person  who  "  caused  " 
the  improvement  to  be  made,  will  be  designated  as  the 
"  owner's  material-man  " ;  the  one  who  supplied  the  original 
contractor,  as  the  "  contractor's  material-man  " ;  and  the  one 
supplying  the  subcontractor,  as  the  "  subcontractor's 
material-man." 

§  78.  Definition  of  "  material-man."  A  material-man  may 
be  defined  to  be  one  who  furnishes  (1)  to  the  owner  (a) 
directly,  or  (b)  through  his  agent,  either  statutory  or  actual, 
or  (2)  to  the  original  contractor,  or  (3)  to  a  subcontractor, 
merely  materials  to  be  used,  and  which  are  actually  used,  in 
the  work  upon  or  in  the  objects  mentioned  in  section  eleven 
hundred  and  eighty-three.^ 

§  79.  Who  are  not  material-men.  In  applying  one  of  the 
tests  to  distinguish  a  contractor,  heretofore  discussed, 
namely,  the  capacity  to  create  "  intermediate  "  lien-holders, 
it  was  observed  that  the  employees  of  a  "  material-man  " 
(except,  perhaps,  those  placing  the  material  in  situ)  have 
no  lien.-  And  a  person  who  sells  material  to  a  material-man, 
who  contracts  either  with  the  owner,^  or  with  the  con- 
tractor,*   is    not    a    "  material-man,"   within  the  meaning   of 

1  Kerr's  Cyc.  Code  Civ.  Proc,  §  1183. 

-  See  §§  46,  54,  60,  69,  ante;  Adams  v.  Burbank,  10?  Cal.  646,  651,  37 
Pac.  Rep.  640  (hauling  brick).  See  Hinckley  v.  Field's  B.  &  C. 
Co.,  91  Cal.  136,  140,  27  Pac.  Rep.  594. 

3  Roebling's  Sons  Co.  v.  Humboldt  E.  L.  &  P.  Co.,  112  Cal.  288,  292, 
44  Pac.  Rep.  568.    See  Sparks  v.  Butte  County  G.  M.  Co.,  55  Cal.  389,  391. 

Washington.  Pacific  Rolling  Mill  Co.  v.  Hamilton,- 61  Fed.  Rep.  496 
(Cir.  Ct.),  affirmed  in  Pacific  Rolling  Mill  Co.  v.  James  Street  Cons. 
Co.,  68  Fed.  Rep.  966,  16  C.  C.  A.  68,  28  U.  S.  App.  698  (under  1  Hill's 
Code,  §  1663). 

*  Wilson  V.  Hind,  113  Cal.  357,  359,  45  P-ac.  Rep.  695. 

Oregon.      Fisher  v.  Tomlinson,  40  Oreg.  Ill,  66  Pac.  Rep.   696. 


81  MATERIAL-MEN.  §  80 

the  statute,  and  has  no  lien  therefor,  as  the  statute  makes 
no  provision  for  sneh  lien. 

The  distinction  between  a  material-man  and  an  original 
contractor  has  been  already  pointed  out,  and  it  is  not  neces- 
sary to  repeat  here  what  was  said  elsewhere.^  A  person 
furnishing  material  only  is  not  an  "  original  contractor." 
within  the  meaning  of  the  mechanic's-lien  law,  but  is  a 
"  material-man."  ^ 

§  80,  Same.  Placing  materials  in  situ.  If,  in  addition 
to  furnishing  materials,  the  material-man  furnishes  or  per- 
forms labor  in  placing  the  materials  in  situ,  he  may  or  may 
not  be  a  material-man,  according  to  circumstances;  the  rule 
being  that  if  the  contract  is  essentially  one  to  furnish 
materials,  and  not  to  build,  and  the  labor  is  trifling  in  com- 
parison with  the  value  of  the  materials,  the  contract  is  one 
for  materials  merely,  and  the  person  furnishing  such 
materials  is  a  "  material-man."  ' 

Steam  plant.  Thus  persons  manufacturing  at  their  shops 
a  steam  plant,  consisting  of  boiler,  engine,  pipes,  and 
necessary  attachments,  and  to  deliver  it  and  put  it  in  place 
in  the  building  for  a  gross  price,  are  material-men.  and  not 
contractors,  the  contract  being  essentially  one  for  furnishing 
material  for  a  factory,  and  not  a  building  contract.* 

»  See  §  60,  ante. 

»  Sparks  v.  Butte  County  G.  M.  Co.,  55  Cal.  389,  391;  Schwartz  v. 
Knight,  74  Cal.  432,  433,  16  Pac.  Rep.  235;  CaUfornia  P.  W.  v.  Blue 
Tent  Consol.  G.  M.  Co.  (Cal.),  22  Pac.  Rep.  391;  Kc/ckhofE-Cuzner  M. 
&  L.  Co.  V.  Olmstead,  85  Cal.  80,  83,  24  Pac.  Rep.  048;  Santa  Monica 
L.  &  M.  Co.  V.  Hege,  119  Cal.  376,  378,  51  Pac.  Rep.  555. 

See  §§  60,  68^  ante. 

Idaho.  Contra:  Colorado  Iron  Works  v.  Riekenberg,  4  idaho  262, 
38  Pac.  Rep.   651. 

Oregon.  Same  rule  as  text:  Innian  v.  Henderson,  29  Oreg.  116,  45 
Pac.  Rep.  300. 

'  See  §§  59,  60,  ante. 

Xevinla.  Contractor  to  furnish  mining  machinery,  appliances,  and 
materials,  and  install  the  same  in  a  mill  to  be  erected  at  defendant's 
mine,  by  defendant,  with  no  other  contractor,  is  an  original  contractor, 
and  not  a  material-man,  under  Cutting's  Comp.  Laws,  §  3885:  Salt  Lake 
H.  Co.  V.  Chainman  M.  &  B.  Co.,  128  Fed.  Rep.  509,  137  Id.  632  (dis- 
tinguishing California  cases). 

'*  Hinckley  v.  Field's  B.  &  C.  Co.,  91  Cal.  136,  140,  27  Pac.  Rep.  594; 
Donahue  v.  Cromartie,  21  Cal.  81,  86;  Lead  &  O.  Co.  v.  New  Albany 
W.  W..  62  Ind.  71. 

Mech.  Liens  —  6 


§  80  mechanics'  liens.  82 

Electric  plant.  Likewise  a  contract  for  the  furnishing 
of  an  electric  plant,  consisting  of  electric  apparatus,  and 
machiner}^  necessary  to  be  used  in  the  construction  of  an 
electric-light  works,  by  the  terras  of  which  the  party  fur- 
nishing the  plant  w^as  to  put  in  the  foundation  upon  which 
to  set  the  dynamos,  and  to  furnish  the  skilled  labor  neces- 
sary for  that  purpose,  and  also  to  set  up  and  connect  the 
machinery  and  install  the  incandescent  lamps,  the  title  to  the 
plant  being  reserved  to  the  furnisher  of  the  plant  until  pay- 
ment made  therefor,  constitutes  the  furnisher  a  "  material- 
man," and  not  a  "  contractor,"  the  contract  being  also 
essentially  one  for  the  furnishing  of  materials.^ 

Ice  plant.  And  likewise  where  a  party  contracted  to  take 
down  and  remove  to  his  shop  an  old  ice-machine  and  set 
up  a  new  ice  plant,  and,  among  other  things,  to  furnish 
certain  tanks  according  to  specifications,  with  the  circulat- 
ing-pumps and  connecting-pipes,  counter-shafts  and  pulleys, 
the  owner,  however,  providing  the  foundation,  water-wheels 
and  settings  thereof,  the  tail-race,  and  the  ropes  and 
pulleys  for  the  transmission  of  power,  the  freights  and  cart- 
ages, it  was  held  to  be  a  contract  to  deliver  machinery  or 
materials,  and  that  of  a  ''  material-man  "  only.^" 

Tiling  and  mantels.  And,  again,  where  the  parties  con- 
tracted with  the  owner  of  a  building  in  process  of  erection 
to  put  in  wooden  mantels  and  the  tiling-mantels,  the  tiling 
of  which  was  to  be  placed  in  the  building  by  permanently 
attaching  it  to  the  brickwork  surrounding  the  mantel- 
pieces, the  labor  of  putting  in  the  mantel  being  small  as 
compared  with  the  value  of  the  mantels,  the  persons  furnish- 
ing the  same  are  likewise  "  material-men,"  and  not  "  original 
contractors."  ^^ 


Nevr  maeliinery  contracted  to  be  fiirnislicd  owners  party  material- 
man: Bryson  v.  McCone,  121  Cal.  153,  156,  157,  53  Pa'^.  Rep.  637; 
Hamilton  v.  Delhi  M.  Co.,  118  Cal.  148,  153,  50  Pac.  Rep.  378;  Conefleld 
V.  Polk,   17   Ind.  App.   429,  436,   46  N.   E.   Rep.   932. 

»  Roebling's  Sons  Co.  v.  Humboldt  E.  L.  &  P.  Co.,  112  Cal.  288,  291, 
44  Pac.  Rep.  568.  See  Bryson  v.  McCone,  121  Cal.  153,  156,  157,  53  Pac. 
Rep.   637. 

1°  Bryson  v.  McCone.  121  Cal.  153,  53  Pac.  Rep.  637. 

"  Bennett  v.  Davis,  113  Cal.  337,  340,  45  Pac.  Rep.  684,  54  Am.  St. 
Rep.  354. 


83  MATERIAL-MEN.  §§81,82 

§  81.  Distinction  between  material-man  and  subcon- 
tractor. This  subject  has  been  already  somewhat  consid- 
ered.^^ The  distinction  heretofore  drawn  between  original 
contractors  and  material-men  ^^  seems  to  be  pertinent  in  this 
connection.  One  who  has  a  contract  with  the  original  con- 
tractor to  furnish  all  the  milhvork  required  for  the  erection 
of  a  building,  to  be  delivered  at  the  building,  is  a  material- 
man only,  and  not  a  subcontractor.^* 

§  82.  Circumstances  under  which  lien  for  materials  is 
given.-''  The  contract.^*^  Use  of  materials.  It  is  not  sufficient 
that  the  material  is  used  in  the  building  or  other  improve- 
ment, but  by  the  terms  of  the  contract  it  must  be  expressly 
furnished  to  be  used  in  it,"  and  not  sold,  in  general  terms, 

"  §  68,  ante. 

"  §  60,  ante. 

Hawaii.  The  statute  makes  no  distinction  between  a  subcontractor 
and  a  material-man,  or  as  to  whether  the  latter  dealt  directly  with 
an  owner,  or  with  the  original  contractor,  or  with  any  subcontractor: 
Hackfeld  v.  Hilo  R.  Co.,  14  Hawn.  448,  452. 

»  Wilson  V.  Hind,  113  Cal.  357,  359,  45  Pac.  Rep.  695. 

Montana.  Under  statute  (1887),  material-men  contracting  with 
original  contractor  were  "subcontractors":  See  Duignan  v.  Montana 
Club,  16  Mont.  189,  40  Pac.  Rep.  294. 

Utali.  Rev.  Stats.,  §  1383,  seems  to  make  same  provision  as  Mon- 
tana. 

^^  See,  generally,  note  78  Am.  Dec.  268. 

"  Oklalionia.  No  provision  is  made  for  a  lien  for  the  contractor's 
material-man:  Darlington  L.  Co.  v.  Lotasitz,  4  Okl.  355,  46  Pac.  Rep. 
481. 

"  Wilson  v.  Nugent,  125  Cal.  280,  284,  57  Pac.  Rep.  1008;  Stimson 
M.  Co.  v.  Los  Angeles  T.  Co.,  141  Cal.  30,  32,  74  Pac.  Rep.  357;  Weath- 
erly  v.  Van  Wyck,  128  Cal.  329,  60  Pac.  Rep.  846;  Ah  Louis  v.  Harwood, 
140  Cal.  500,  503,  74  Pac.  Rep.  41;  Bottomly  v.  Rector  etc.  Grace 
Church,  2  Cal.  90,  92;  Houghton  v.  Blake,  5  Cal.  240,  241;  Holmes  v. 
Richct,  56  Cal.  307,  310,  38  Am.  Rep.  54;  Cohn  v.  Wright,  89  Cal.  86,  88, 
26  Pac.  Rep.  643;  Roebling's  Sons  Co.  v.  Bear  Valley  Irr.  Co.,  99  Cal. 
488,  490,  34  Pac.  Rep.  80;  Neihaus  v.  Morgan  (Cal.),  45  Pac.  Rep.  255. 

See  §§  87  et  seq.,  post. 

As  to  passing  of  title  of  material,  see  Roebling's  Sons  Co.  v.  Hum- 
boldt Electric  L.  &  P.  Co.,  112  Cal.  288,  290,  44  Pac.  Rep.  568;  Hamilton 
v.  Delhi  M.  Co.,  118  Cal.  148,  153,  50  Pac.  Rep.  378  Cno  lien  was  allowed 
In  either  of  these  cases). 

As  to  definition  of  word  "furnished,"  see  Bennett  v.  Beadle,  142 
Cal.  239,  213,  75  Pac.  Rep.  843. 

Colorado.  Tabor-Pierce  L,.  Co.  v.  International  T.  Co.,  19  Colo.  App. 
108.  75  Pac.  Rep.  150;  but,  under  Laws  1893,  cH.  cvii,  p.  315,  it  was  not 
necessary  that  the  materials  should  be  actually  so  used. 

Idaho.  Colorado  I.  'W.  v.  Riekenberg,  4  Idaho  705,  43  Pac.  Rep. 
681,  682. 


§  82  mechanics'  liens.  84 

to  be  used  for  some  unknown  purpose.  The  material-man 
cannot  follow  his  material  and  fix  a  lien  for  its  contract 
price  on  the  premises,  wherever  it  may  happen  to  be  used.^* 
Contract  out  of  state,  for  materials  to  be  furnished  for  a 
building  or  improvement  in  the  state,  is  to  be  interpreted, 
and  is  governed  in  its  enforcement,  by  the  laws  of  the  state 
in  which  the  contract  is  to  be  executed,  and  a  mechanic's 
lien  may  be  acquired  thereunder.'* 

Montana.  Missoula  Mercantile  Co.  v.  O'Donnell,  24  Mont.  65,  60  Pac. 
Rep.   594. 

Oklahoma.  Ryndak  v.  Seawell,  13  Okl.  737,  76  Pac.  Rep.  170.  See 
Blanshard  v.   Schwartz,   7   Okl.   23,   54   Pac.  Rep.   303,   305. 

Oregon.  Fitch  v.  Howitt,  32  Oreg.  396,  52  Pac.  Rep.  192;  Title  G.  & 
T.  Co.  V.  Wrenn,  35  Oreg.  62,  56  Pac.  Rep.  271,  274,  76  Am.  St.  Rep.  454. 

AVashington.  Seattle  L,.  Co.  v.  Sweeney  (V^ash.),  85  Pac.  Rep.  677; 
Knudson-Jacob  Co.  v.  Brandt  (Wash.),  87  Pac.  Rep.  43;  Potvin  v. 
Denny  Hotel  Co.,  37  Wash.  323,  79  Pac.  Rep.  940. 

Materials  are  required  to  be  furnished  for  tlie  particular  building, 
"  and  if  not  furnished  directly  to  the  owner,  they  clearly  must  be 
furnished  to  the  contractor,  as  such,  in  that  particular  case,  and  not 
simply  to  a  person  generally,  without  any  reference  to  the  particular 
contract  under  which  he  is  erecting  the  building.  ...  In  the  case  of 
Eisenbeis  v.  Wakeman,  3  Wash.  534,  28  Pac.  Rep.  923,  we  held  that  a 
lien  could  not  be  maintained  upon  any  particular  building  by  a  person 
who  furnished  brick  for  a  firm  of  contractors  for  use  by  them  indis- 
criminately in  the  construction  of  certain  buildings,  for  the  erection 
of  which  they  had  contracts":  Whittier  v.  Puget  Sound  L.  T.  &  B.  Co., 
4  Wash.  666,  30  Pac.  Rep.  1094,  31  Am.  St.  Rep.  944. 

"  Ah  Louis  V.  Harwood,  140  Cal.  500,  503,  74  Pac.  Rep.  41.  See 
Bennett  v.  Beadle,  142  Cal.  239,  75  Pac.  Rep.  843;  Ripley  v.  Cochiti 
G.  M.  Co.    (N.  M.),  76  Pac.  Rep.   255. 

Hawaii.  There  need  not  be  a  contract  relation  between  the  ma- 
terial-man and  the  owner  of  the  structure,  for  the  lien  to  attach: 
Hackfeld  v.  Hilo  R.  Co.,  14  Hawn.  448. 

Oklahoma.  Ferguson  v.  Stephenson-Brown  L.  Co.,  14  Okl.  148,  77 
Pac.  Rep.   184. 

'"  New  Mexico.  Materials  sold  and  delivered  outside  of  the  state, 
to  be  used  in  a  particular  building  in  the  state,  may  form  the  basis  of 
a  lien  under  the  laws  of  the  state  where  the  property  is  situated: 
Genest  v.  Las  Vegas  Masonic  B.  Assoc.  11  N.  M.  251,  67  Pac.  Rep.  743; 
Ripley  v.  Cochiti  G.  M.  Co.   fN.  M.),   76  Pac.  Rep.  285. 

See,  on  this  subject,  among  other  authorities,  the  following: 

Georgia.     Thurman  v.  Kyle,  71  Ga.  628. 

TIlinoi.s.     Gaty  v.  Casey,  15  111.  189. 

Kansa.s.  United  States  Inv.  Co.  v.  Phelps  and  Bigelow  W.  Co.,  54 
Kan.    144,    14   Pac.    Rep.    982. 

Minnesota.      Atkins  v.   Little.   17   Minn.   342    (Gil.   320). 

Nebraska.  Great  Western  Mfg.  Co.  v.  Hunter,  15  Neb.  32,  16  N.  W. 
Rep.  759;    Badger  L.  Co.  v.  Mayes,  38  Neb.  822,  57  N.  W.  Rep.  519. 

New  York.  Birmingham  I.  F.  v.  Glenn  Cove  S.  Mfg.  Co.,  78  N.  T. 
30;  Campbell  v.  Coon,  149 -N.  T.  556,  38  L.  R.  A.  410,  44  N.  E.  Rep.  300, 
reversing  s.  c.  8  Misc.  Rep.  234,  28  N.  Y.  Supp.  561. 


85  MATERIAL-MEN.  §§  83-85 

§  83.  Same.  Contract  for  sale,  or  for  labor.  On  the  sub- 
ject of  contracts  for  sale  of  materials,  and  contracts  for 
labor,  within  the  statute  of  frauds,  which  bears  a  close  rela- 
tion to  the  subject  under  discussion,  there  is  much  conflict 
of  decisions;  but  the  weight  of  authority  in  this  country 
supports  the  proposition  that  Avhere  the  seller  is  to  furnish 
materials  and  fashion  them  according  to  specifications 
furnished  by  the  purchaser,  or  according  to  some  model 
selected,  and  when,  without  the  special  contract  entered 
into  by  the  parties,  the  thing  furnished  would  never  have 
been  put  in  the  particular  shape  or  condition  in  which  it  was 
furnished,  then  the  contract  is  essentially  one  for  labor,  and 
is  not  within  the  statute  of  frauds.-" 

§  84.     Same.     Formalities.     Recording  contract.    The  con 
tract  of  the  material-man  is  not  void  for  want  of  record, 
nor  is  it  otherAvise  subject  to  any  particular  formalities,  so 
far  as  the  mechanic's-lien  law  is  concerned,  even  where  the 
contract  price  is  more  than  one  thousand  dollars.^^ 

§  85.  Same.  As  affected  by  original  contract.  Knowl- 
edge by  the  material-man,  at  the  time  of  entering  into  the 
contract,  that  the  material  does  not  conform  to  the  terms 
of  the  original  contract  of  the  original  contractor  and  the 

Ohio.     Bender  v.  Stettenius,  19  Wkly.  L.  Bui.  163,  10  Ohio  Dec.  186. 

Texas.     Fagan  v.  Boyle  I.  M.  Co.,  65  Tex.  324. 

Wi.scon.siii.  Mallory  v.  La  Crosse  Abattoir  Co.,  80  Wis.  170,  49 
N.  "W.  Rep.  1071. 

-"  Flynn  v.  Dougherty,  91  Cal.  669,  671,  27  Pac.  Rep.  1080,  14  L.  R.  A. 
230. 

Compare  also  Mannix  v.  Tryon  (Cal.  Sup.,  Sept.  9,  1907),  91  Pac. 
Rep.  983,  and  Bancroft  v.  San  Francisco  Tool  Co.,  120  Cal.  228,  52 
Pac.  Rep.   496. 

Utah.  A  contract  of  a  material-man  to  furnish  finishing  materials 
according  to  the  plans  and  specifications,  requiring  all  material  to  be 
thoroughly  kiln-dried,  hand-smoothed  and  scraped,  is  in  the  nature 
of  a  building  contract,  obligating  the  material-man  to  furnisli  and 
deliver  the  materials  according  to  such  specifications,  and  the  doctrine 
of  caveat  emptor  does  not  apply:  Utah  L.  Co.  v.  James,  25  Utah  434,  71 
Pac.  Rep.  986. 

"  Hinckley  v.  Field's  B.  &  C.  Co.,  91  Cal.  136,  140,  27  Pac.  Rep. 
594. 

See  "Definition  of  'Original  Contract,'"  §211,  post;  "Statutory 
Original  Contract,"  §  214,  post. 


§§  86, 87  mechanics'  tjens.  86 

owner,  does  not  affect  the  material-man's  lien,  in  the  absence 
of  conspiracy  or  frand.^^ 

§  86.  Same.  Other  general  essentials.  A  lien  for  ma- 
terials is  not  given  in  all  cases  where  materials  are,  under 
the  terms  of  the  contract,  furnished  for  use  or  are  actually- 
used  in  the  work.  1.  The  nature  of  the  materials;  2.  The 
manner  of  their  use;  3.  The  character  of  the  work  being 
done  on  the  property  for  which  they  are  furnished;  and 
4.  The  character  of  the  property,  —  these  are  all  matters  to 
be  considered  in  determining  whether  a  lien  has  been  con- 
ferred.    These  subjects  will  be  considered  separately  below. 

§  87.     Same.     Nature  and  manner  of  use  of  materials.-^ 

The  California  constitution  of  1879  provides  that  material- 
men shall  have  a  lien  upon  the  property  "  upon  "  which  they 
have  "  furnished  "  materials,  for  the  value  of  such  materials 
"  furnished  " ;  ^*  and  the  Code  of  Civil  Procedure  -^  provides 

22  Howe  V.  Schmidt  (Cal.  Sup.,  June  27,  1907),  90  Pac.  Rep.  1056. 

See  §  103,  post. 

If  materials  were  of  such  character  as  mi^ht  ordinarily  he  used  in 

such  a  building,  though  not  of  such  quaUty  as  required  by  the  con- 
tract, seller  is  entitled  to  his  lien,  if  he  had  no  knowledge  of  their 
unfitness:  Odd  Fellows'  Hall  v.  Masser,  24  Pa.  St.  (12  Harris)  507,  64 
Am.    Dec.    675. 

Materials  not  fit  for  the  purpose,  lien  denied  by  some  of  the  cases: 
See  Boynton  Furnace  Co.  v.  Gilbert,  87  Iowa  15,  53  N.  W.  Rep.  1085; 
Harlan  v.  Rand,  27  Pa.  St.   (3  Casey)   511. 

25  Howe  V.  Schmidt  (Cal.  Sup.,  June  27,  1907),  90  Pac.  Rep.  1056. 

See   §  103,    post. 

Generally,  see  note  64  Am.  Dec.  678,  as  to  materials  furnished  to  be 
used,  but  not  in  fact  used. 

Utah.  Boilers,  castings,  and  materials  for  carrying  on  mill,  etc.: 
Rev.  Stats.,  §  1397. 

Washington.  As  to  the  ownership  of  the  materials  furnished,  it 
was  held  that  building-stone  taken  from  the  public  land  of  the  United 
States,  being  the  property  of  the  person  who  quarries  it,  may  form 
the  basis  of  a  lien:  Johnston  v.  Harrington,   5  Wash.  73,   31  Pac.  Rep. 

Wyoming.     Materials   for    timbering    shafts,    etc.:    Rev.    Stats.    1899, 

S  9  ^  fi  ^ 

2*  C^al.  Const.  1879,  art.  xx,  §  15,  Henning's  General  Laws,  p.  civ. 
See  Bennett  v.  Beadle,  142  Cal.  239,  242,  75  Pac.  Rep.  843. 

Montana.     See  McFwen  v.  Montana  Pulp  &  P.  Co.    (Mont.),   90  Pac. 

Rep.  359. 

2*  Kerr's  Cyc.  Code  Civ.  Proc,  §  1183. 


87  •  MATERIAL-MEN.  §  87 

that  a  person  "  furnishing  materials  to  be  used  in  the  con- 
struction, alteration,  addition  to,  or  repair,  either  in  whole  or 
in  part,"  of  the  objects  mentioned  in  the  section,  shall  have 
a  lien  for  the  value  of  such  materials.  It  has  been  uniformly 
held,  both  before  and  since  the  adoption  of  the  present  con- 
stitution, that  the  materials  must  not  only  be  furnished  to 
be  used,  but  they  must  actually  have  been  used,  in  the  "  con- 
struction, alteration,  addition  to,  or  repair  "  of  the  building 
or  other  improvement,  to  entitle  the  material-man  to  a  lien.-*^ 


»  Patent  Brick  Co.  v.  Moore,  75  Cal.  205,  211,  16  Pac.  Rep.  890; 
Silvester  v.  Coe  Quartz  M.  Co.,  80  Cal.  510,  513,  22  Pac.  Rep.  217; 
Bewick  v.  Muir,  83  Cal.  368,  373,  23  Pac.  Rep.  389,  390;  Schallert-Ganahl 
L.  Co.  V.  Neale,  90  Cal.  213,  215,  27  Pac.  Rep.  192.  See  Hamilton  v. 
Delhi  M.  Co.,  118  Cal.  148,  153,  50  Pac.  Rep.  378;  Barrows  v.  Knight, 
55  Cal.  155,  159;  California  Powder  Works  v.  Blue  Tent  Consol.  M.  Co. 
(Cal.),  22  Pac.  Rep.  391;  Tibbetts  v.  Moore,  23  Cal.  208,  214  (1856); 
Bianchi  v.  Hughes,  124  Cal.  24,  56  Pac.  Rep.  610;  Wilson  v.  Nugent, 
125  Cal.  280,  284,  57  Pac.  Rep.  1008;  Roebling's  Sons  Co.  v.  Bear  Valley 
Irr.  Co.,  99  Cal.  488,  34  Pac.  Rep.  80;  Weatherly  v.  Van  Wyck,  128  Cal. 
329,  60  Pac.  Rep.  846;  Stimson  M.  Co.  v.  Los  Angeles  T.  Co.,  141  Cal. 
30,  32,  74  Pac.  Rep.  357;  Ah  Louis  v.  Harwood,  140  Cal.  500,  503,  74 
Pac.  Rep.  41.  See  Mandary  v.  Smartt,  1  Cal.  App.  498,  500,  82  Pac.  Rep. 
561;  Bennett  v.  Beadle,  142  Cal.  239,  242,  75  Pac.  Rep.  843;  Parke  and 
Lacy  Co.  v.  Inter  Nos  O.  &  D.  Co.,  147  Cal.  490,  493,  82  Pac.  Rep.  51. 

For  definition  of  "furnished,"  see  Tibbetts  v.  Moore,  23  Cal.  208,  214; 
Bennett  v.  Beadle,  142  Cal.  239,  242,  75  Pac.  Rep.  843. 

Colorado.     Antlers  Park  Regent  M.  Co.  v.  Cunningham,  29  Colo.  284, 
68  Pac.  Rep.  226;   Michael  v.  Reeves,  14  Colo.  App.  460,  60  Pac.  Rep.  577. 
Under   Laws   1893,   ch.    cxvii,    p.    315,   §  1,    the   materials   need   not    be 
used  in  the  structure. 

Under  act  of  1SS9,  material  was  not  required  to  be  actually  used: 
Small  v.  Foley,  8  Colo.  App.  445,  47  Pac.  Rep.  64.  But  see  Sayre- 
Newton  L.  Co.  v.  Union  Bank  of  Denver,  6  Colo.  App.  541,  41  Pac. 
Rep.  844. 

Hawaii.     Allen  v.  Redward,  10  Hawn.  151,  158. 

Idalio.  Colorado  Iron  Works  v.  Riekenberg,  4  Idaho  705,  43  Pac. 
Rep.  681. 

Montana.  See  Duignan  v.  Montana  Club,  16  Mont.  189,  40  Pac.  Rep. 
294;  Missoula  Mercantile  Co.  v.  O'Donnell,  24  Mont.  65,  60  Pac.  Rep. 
594,  991. 

Olilaiioma.  Ryndak  v.  Seawell,  13  Okl.  737,  76  Pac.  Rep.  170;  Har- 
ness v.  McKee-Brown  L.  Co.  (Okl.),  89  Pac.  Rep.  1020,  1021.  See 
Blanshard  v.   Schwartz,   7   Okl.   23,   54   Pac.   Rep.   303,   305. 

Oregon.  Fitch  v.  Howitt,  32  Oreg.  396,  52  Pac.  Rep.  192.  See  Allen 
V.  Elwert,  29  Oreg.  428,  44  Pac.  Rep.  823,  48  Pac.  Rep.  54. 

Material  left  over.  No  lien  can  be  had  for  the  material  remaining 
after  the  completion  of  the  building  and  not  used:  Fitch  v.  Howitt, 
supra. 

Use  in  room  sublet.  It  is  no  defense,  as  to  the  owner  and  lessee, 
that  a  portion  of  the  material  was  used  in  a  room  sublet  by  the  lessee 
to  a  third  person:  Nottingham  v.  McKendrick,  38  Oreg.  495,  63  Pac. 
Rep.  822. 


§§  88, 89  mechanics'  liens.  88 

§  88.  Same.  Definition  of  "  furnished."  A  material-man 
may  be  properly  said  to  have  "  furnished  "  the  materials 
when  he  has  delivered  them,  or  has  them  ready  for  delivery, 
at  the  place  where  he  has  agreed  to  deliver  them  under  the 
contract.^^ 

§  89.  Same.  Materials,  how  "  used."  While  the  rule 
that  the  materials  must  be  used  in  the  building  or  other 
improvement  is  well  established,  its  application  is  sometimes 
difficult.  The  materials  must  be  used  not  merely  in  the 
process  of  construction,  but  "  in  the  structure" ;  that  is  to 
say,  they  must  be  used  as  the  materials  of  which  it  is  con- 
structed.^^ The  materials  may,  in  a  degree,  be  "  used  "  or 
be  instrumental  in  forwarding  the  work,  for  the  furnishing 
materials  for  which,  in  general,  a  lien  has  been  given,  and 
may,  perhaps,  be  indispensable  for  that  purpose,  and  yet 
no  lien  may  have  been  given  therefor  under  the  statute.^' 
Thus  picks  and  shovels  used  in  the  construction  of  a  rail- 

Ftah.  Sierra  Nevada  L.  Co.  v.  Whitmore,  24  Utah  130,  66  Pac.  Rep. 
779,  781. 

AVashington.  W.  P.  Fuller  &  Co.  v.  Ryan  (Wash.),  87  Pac.  Rep.  485. 
But  see  Potvin  v.  Denny  Hotel  Co.,  37  Wash.  323,  79  Pac.  Rep.  940. 

Portion  only  used,  lien  for  wliole  -tvhen.  In  Huttig  Bros.  Mfg.  Co. 
V.  Denny  Hotel  Co.,  6  Wash.  122,  34  Pac.  Rep.  774,  it  was  held  that 
where  materials  have  been  specially  designed  for  a  building,  and 
furnished  to  the  contractor  therefor,  a  lien  may  be  claimed  for  the 
whole  amount  furnished,  although  only  a  portion  has  been  used  in  the 
construction  and  the  rest  was  then  upon  the  premises,  the  only  reason 
why  the  same  was  not  used  being  in  consequence  of  the  contractor 
having  suspended  w^ork.  But  see  dissenting  opinion,  which  holds  the 
rule  of  the  text  to  be  applicable  (6  Wash.  624). 

As  to  necessity  of  actual  use  of  materials  in  the  building,  see 
Whittier  v.  Stetson  &  P.  M.  Co.,  6  Wash.  190,  33  Pac.  Rep.  393.  36  Am. 
St.  Rep.  149;  Pacific  R.  M.  Co.  v.  James  Street  Const.  Co.,  68  Fed.  Rep. 
966.  970,  16  C.  C.  A.  68,  29  U.  S.  App.  698;  Seattle  L.  Co.  v.  Sweeney 
(Wash.),  85  Pac.  Rep.  677;  Knudson-Jacob  Co.  v.  Brandt  (Wash.),  87 
Pac.  Rep.  43. 

^  Tibbetts  v.  Moore,  23  Cal.   208,  214. 

2*  Stimson  M.  Co.  v.  Los  Angeles  T.  Co.,  141  Cal.  30,  32,  74  Pac. 
Rep.  357. 

See  Kerr's  Cyc.  Code  Civ.  Proc,  §  1200. 

Wasliingrton.  Armour  &  Co.  v.  Western  Const.  Co.,  36  Wash.  529,  78 
Pac.  Rep.  1106. 

^  Montana.  So  illuminating-oil,  mica-grease,  lubricating-oil,  and 
gasolene  for  fuel,  used  in  a  mining  plant,  are  not  materials,  within 
§  2130  of  the  Code  of  Civil  Procedure,  as  they  do  not  enhance  the  value 
nor  become  a  part  of  the  machinery,  fixtures,  or  building:  A.  M.  Holter 
H.  Co.  V.  Ontario  M.  Co.,  24  Mont.  198,  61  Pac.  Rep.  8,  81  Am.  St.  Rep. 
421. 


89  MATERIAL-MEN.  §  89 

road  are  not  articles  for  which  the  statute  provides  a  lien ;  ^° 
and  deer  and  bear  meats  furnished  for  laborers  on  a  mine 
are  not  proper  materials  upon  which  to  base  a  lien.^^ 
Likewise  as  to  money  advanced  expressh^  for  payment  of 
materials  or  labor  in  the  erection  of  a  building ;  ^-  and  lumber 
used  in  building  temporarj'^  houses  in  the  construction  of  a 
railroad, ^^  or  in  "  preliminary  work  "  on  a  eanal,^*  or  material 
for  a  temporary  structure,  not  in  the  nature  of  a  fixture, 
used  and  destroyed,  pari  passu,  with  the  erection  of  the 

3»  Gordon  H.  Co.  v.  San  Francisco  &  S.  R.  R.  Co.,  86  Cal.  620,  622,  25 
Pac.  Rep.  125. 

AriKoiin.     Lien  for  tools,  machinery,  and  fixtures:  Rev.  Stats.,  §  2258. 

Colorado.  Steel  and  candles  were  held  a  proper  basis  of  lien:  Key- 
stone M.  Co.  V.  Gallagher,  5  Colo.  23   (1872). 

Hawaii.     .See  Hackfeld  v.  Hilo  R.  Co.,  14  Hawn.  448,  455   (tools). 

Oklalioina.  Not  lightning-rods:  2  Rev.  and  Ann.  Stats.  1903,  (4828) 
§  630. 

Oregon.  Not  appliances  and  tools  for  raising  and  moving  houses: 
Allen  v.  Elwert,  29  Oreg.  428,  44  Pac.  Rep.  823,  48  Id.  54. 

31  Malone  v.  Big  Flat  G.  M.  Co.,  76  Cal.  578,  586,  IS  Pac.  Rep.  772.  It 
seems  that  in  Eaton  v.  Rocca,  75  Cal.  93,  94,  16  Pac.  Rep.  529,  an 
attempt  was  made  to  foreclose  a  lien  for  the  board  of  certain  laborers 
on  the  mine,  but  the  case  went  off  on  another  point,  and  no  reference 
was  made  in  the  opinion  as  to  the  character  of  the  materials. 

AVasIiinston.  Likewise  no  lien  for  "provisions":  Armour  &  Co.  v. 
Western   Const.   Co.,   36  Wash.   529,   78   Pac.   Rep.   1106. 

•  ■■'■-  Cadenasso  v.  Antonello,  127  Cal.  382,  385,  59  Pac.  Rep.  765; 
Godeffroy  v.  Caldwell,  2  Cal.  489,  492,  56  Am.  Dec.  360  (the  well-known 
principle  of  equitable  conversion,  as  administered  in  admiralty,  being 
inapplicable). 

Hawaii.     Hackfeld  v.  Hilo  R.  Co.,  14  Hawn.  448. 

Money  advaneetl  or  lent  to  a  contractor,  to  be  used  in  erecting 
building,  furnishing  material  therefor,  or  in  payment  of  laborers 
thereon,  furnishes  no  basis  for  a  mechanic's  lien  on  the  premises: 
Godeffroy  v.  Caldwell,  2  Cal.  489.  492,  56  .\m.  Dec.  360;  Cadenasso  v. 
Antonello,  127  Cal.  382,  386,  59  Pac.  Rep.  765  ("money  advanced"  is 
not  equivalent  to  "labor  and  material").  See  Steamboat  James  Battle 
V.  Waring,  39  Ala.  183;  First  Municipality  v.  Bell,  4  La.  Ann.  121;  Ray 
County  Sav.  Bank  v.  Cramer,  54  Mo.  App.  587;  Williams  v.  Bradford 
(N.  J.),  21  Atl.  Rep.  331;  Kerby  v.  Daly,  45  N.  Y.  84;  City  of  Hamilton 
V.  Stelwaugh,  11  Ohio  Cir.  Ct.  Rep.  182,  1  Ohio  C.  D.  324;  Gaylord  v. 
Laughbridge,  50  Tex.  573,  577;  International  B.  &  L.  Assoc,  v.  Fortas- 
sain   (Tex.  Civ.  App.),  23  S.  W.  Rep.  496. 

83  See  Harmon  v.  San  Francisco  &  S.  R.  R.  Co.,  86  Cal.  617,  618,  25 
Pac.  Rep.  124,  where  the  intimation  seems  to  be  to  this  effect,  the 
value  of  such  materials  having  been  included  with  the  value  of  other 
materials. 

Hawaii.    Hackfeld  v.  Hilo  R.  Co.,  14  Hawn.  448.  455. 

Montana.  "W^aste":  See  Marsh  v.  Morgan.  18  Mont.  19,  44  Pac. 
Rep.  85. 

3*  See  South  Fork  C.  Co.  v.  Gordon,  73  U.  S.  (6  Wall.)  561,  bk.  18 
L.  ed.   894. 

See   "  Nature   of  La1)or,"   §§  130   et  seq.,  post. 


§  90  mechanics'  ltens.  90 

permanent  structure.^^  And  likewise  as  to  patterns  used  in 
the  manufacture  of  couplings,  which  remained  the  property 
of  the  material-man ;  ^'^  and  the  value  of  the  boxes  in  which 
the  couplings  were  cased  for  shipment  cannot  be  properly 
charged  separately  from  the  price  of  the  couplings,  where 
the  boxes  likewise  remain  the  property  of  the  material- 
man.^^ This  rule  seems  to  be  placed  on  the  ground  that  the 
charges  are  too  remote  from  the  actual  work  of  construction. 

§  90.  Same,  Lien,  when  allowed.  Package.  On  the 
other  hand,  however,  actual  incorporation  of  all  the  "  fur- 
nished "  material  in  the  structure  is  not  insisted  upon  in 
all  cases.  Thus  where  the  material  is  usually  delivered  in 
packages,  it  is  proper  to  charge  for  it  as  packed,  although 
the  small  material  constituting  the  package  does  not 
literally  go  into  the  construction  of  the  building,  or  in  any 
way  make  its  appearance  therein. ^^ 

Powder  used  for  blasting  in  constructing  a  flume  or  tun- 
nel, or  on  a  mine,  is  material  for  which  a  lien  may  be  had.^'' 

35  Stimson  M.  Co.  v.  Los  Angeles  T.  Co.,  141  Cal.  30,  74  Pac.  Rep.  357. 

3«  First   Nat.  Bank   v.  Perris   Irr.  Dist.,  107    Cal.  55,  66,  40    Pac.  Rep.  45. 

3'  First   Nat.  Bank   v.  Perris    Irr.  Dist,  107    Cal.  55,  66.  40    Pac.  Rep.  45. 

^  Snell  V.  Payne,  115  Cal.  218,  46  Pac.  Rep.  1069  (lime  furnished  In 
barrels  for  the  construction  of  a  building;  the  barrels  were  permitted 
to  be  included  in  the  charge  for  the  lime,  although  the  barrels  were 
not  "used"  and  were  not  returned).  See  First  Nat.  Bank  v.  Perris 
Irr.  Dist.,  107  Cal.  55,  66,  40  Pac.  Rep.  45. 

See   "Nature   of   Labor,"    §92.   and  §130,   post. 

3'  In  Giant  P.  Co.  v.  San  Diego  F.  Co.,  78  Cal.  193,  201,  20  Pac.  Rep. 
419.  Mr.  Justice  McFarland  thought  that  the  plaintiff  had  no  lien  for 
the  powder  furnished,  and  that  the  question  was  necessarily  involved 
in  the  decision.  The  court,  however,  assumed  that  there  was  such  a 
lien.  On  a  subsequent  appeal  of  the  case  (88  Cal.  20,  26),  Mr.  Justice 
De  Haven,  in  concurring,  said  that  the  question  whether  the  powder 
supplied  in  the  work  of  constructing  a  flume  or  tunnel  may  be 
regarded  as  part  of  the  "material  used"  in  the  construction  was  not 
involved  in  the  disposition  of  the  appeal,  and  Mr.  Justice  McFarland 
repeated  his  opinion  that  there  was  no  lien  for  such  material;  but  in 
an  earlier  case  (California  P.  W.  v.  Blue  Tent  Consol.  H.  G.  M.  of  Cal. 
(Cal.),  22  Pac.  Rep.  391),  which  was  not  referred  to  in  the  last- 
mentioned  opinion,  it  was  said  that  it  was  not  questioned  that  a 
material-man  may  have  a  lien  for  powder,  and  refers  to  Giant  P.  Co. 
V.  San  Diego  F.  Co.,  78  Cal.  193,  20  Pac.  Rep.  419,  as  authority  that  a 
lien   is    given   therefor. 

Colorado.  Keystone  M.  Co.  v.  Gallagher,  5  Colo.  23  (1872);  "ma- 
terial  to  be  used  in  or  about  the  mine." 

Oregon.  Powder  used  in  the  construction  of  a  railway:  Giant  P. 
Co   V    Oregon  Pac.  R.  Co.,  42  Fed.  Rep.  470,  8  L.  R.  A.  700  (1885). 


91  MATERIAL- MEN.  §  91 

§  91.  Same.  Carriage  charges.  Upon  similar  principles, 
certain  labor  and  expenses  incident  to  bringing  the  material 
to  the  building  or  other  improvement  may  be  included  as 
part  of  the  price  of  the  material.***  Thus  cartage,  where 
charged  as  a  portion  of  the  cost  of  the  material  furnished 
in  the  construction  of  a  building,  may  be  properly  allowed 
as  part  of  the  price  of  the  materials.*^  And  it  is  thought 
that  the  cost  of  placing  the  material  in  situ  may,  under 
some  circumstances,  be  regarded  as  a  part  of  the  cost  of  the 
material.*^ 

*"  See  "  Distinction  between  Contractor  and  Material-man,"  etc., 
§§  60,   68,   ante. 

Colorado.     See  Barnard  v.  McKenzie,  4  Colo.  251,  253   (dictum). 

"  West  Coast  L.  Co.  v.  Newkirk,  80  Cal.  275,  280,  22  Pac.  Rep.  23 
("the  cartage,  ...  if  allowed  at  all,  was  allowed  as  a  part  of  the 
value  of  the  materials"),  flistin|!;ui.>«bed  in  First  Nat.  Bank  v.  Perris 
Irr.  Dist.,  107  Cal.  55,  66,  40  Pac.  Rep.  45;  Jones  v.  Kruse,  138  Cal.  613, 
618,  72  Pac.  Rep.  146  (cost  of  cartage  part  of  cost  of  material).  See 
McClain  v.  Hutton,  131  Cal.  132,  137,  61  Pac.  Rep.  273,  63  Id.  182,  622 
(allowing  lien  when  hauling  done  under  employment  by  owner's 
agent);  and  French  v.  Powell,  135  Cal.  636,  644,  68  Pac.  Rep.  92  (suit 
on  statutory  bond,  wages  of  blacksmith  allowed;  not  authority  for 
blacksmith  filing  mechanic's  lien  on  property). 

Compare:  Adams  v.  Burbank,  103  Cal.  646,  37  Pac.  Rep.  640  (dis- 
allowing claim  of  lien  for  hauling  brick);  Wilson  v.  Nugent,  125  Cal. 
280,  57  Pac.  Rep.  1008  (person  hauling  slate  for  roof  on  engagement 
of  contractor  not  entitled  to  mechanic's  lien). 

Blacksmith  sharpening  tools  used  in  a  mine  allowed  mechanic's  lien 
for  value  of  his  services,  on  ground  that  the  tools  are  a  part  of  the 
mine:  Malone  v.  Big  Flat  G.  M.  Co.,  76  Cal.  578,  585,  18  Pac.  Rep.  772. 

Boardint^-house  keeper  not  entitled  to  mechanic's  lien  for  price  of 
board  furnished  men  working  on  job:  Perrault  v.  Shaw,  69  N.  H.  180, 
181,  38  Atl.  Rep.  724,  76  Am.  St.  Rep.  161.  See  United  States  v.  Kemp- 
land,  99  Fed.  Rep.  405. 

Book-keeper  on  mine  not  entitled  to  mechanic's  lien  for  value  of  his 
services:  Rara  Avis  G.  &  S.  M.  Co.  v.  Boucher,  9  Colo.  385,  388,  12  Pac. 
Rep.  433. 

See  Kerr's  Cyo.  Code  Civ.  Proe..  §  1183,  note  pars.  148,  149. 

Cook  for  men  employed  in  construction  of  reservoir,  not  entitled  to 
mechanic's  lien  for  his  services:  McCormick  v.  Los  Angeles  City  W. 
Co..  40  Cal.  185. 

Cook  in  mine  not  entitled  to  mechanic's  lien:  See  Kerr's  Cyc.  Code 
Civ.    I'roc.,    §1183,    note    pars.    148,    149. 

Watchman  in  mine  not  entitled  to  mechanic's  lien  for  his  services: 
See   Kerr's   Cyc.   Code  Civ.   Proc,  §  1183,   note  pars.    148,    149. 

Distinguishing  the  case  of  Adams  v.  Burbank,  103  Cal.  646,  651,  37 
Pac.  Rep.  640,  :is  being  the  claim  of  lien  of  a  material-man's  laborer, 
w^ho  in  no  event  has  a  lien. 

Freight  charges  and  cartage.  The  rule  in  the  text  was  likewise 
applied  to  freight  and  cartage:  See  Harmon  v.  San  Francisco  &  S.  R.  R. 
Co.,  86  Cal.  617,  618,  25  Pac.  Rep.  124. 

Montana.     See  Eccleston  v.  Hetting,  17  Mont.  88,  42  Pac.  Rep.  105. 

«='  See  §  60,  ante. 


§§  92, 93  mechanics'  liens.  92 

Building  as  material.  The  materials  may  be  in  a  more  or 
less  crude  state ;  but,  on  the  other  hand,  under  certain  cir- 
cumstances, even  a  comjjleted  building  may  be  considered 
to  be  "  materials  furnished."  Thus  where  the  defendant  em- 
ployed the  plaintiff  to  erect  certain  improvements  upon  a 
lot  owned  by  the  former,  and,  as  part  thereof,  plaintiff  was 
to  place  on  the  lot  a  small  frame  house,  which  he  had 
previously  constructed,  and  make  certain  additions  thereto, 
and  for  the  house  plaintiff  was  to  receive  a  certain  sum,  with 
all  of  which  plaintiff'  complied,  it  was  held  that  although 
the  mechanic's-lien  law  probably  did  not  confer  a  lien  for 
the  price  of  a  building  already  constructed  and  then  sold 
to  be  put  upon  a  lot,  yet,  where  such  building  was  to  become 
part  of  a  larger  structure,  under  the  agreement,  and  it  was 
so  used,  it  may  be  regarded  as  material  furnished  for  that 
purpose.*^ 

§  92.  Same.  Nature  of  the  work  on  the  property  for 
which  the  materials  are  furnished.  Since  the  material  must 
be  actually  used  in  the  repair  or  improvement,**  it  is  obvious 
that  work  or  labor  in  which  the  material  may  be  used  must 
be  performed.  Under  section  eleven  hundred  and  eighty- 
three.*^  material-men  have  a  lien  only  for  material  furnished 
and  used  "  in  the  construction,  alteration,  addition  to,  or 
repair,  either  in  whole  or  in  part,  of  any  building,  wharf, 
bridge,  ditch,  flume,  aqueduct,  well,  tunnel,  fence,  machin- 
ery, railroad,  wagon-road,  or  other  structure."  The  words, 
"  construction,  alteration,  addition  to,  or  repair,"  are  given 
different  meanings  in  the  decisions,  as  will  be  fully  developed 
in  the  following  sections. 

§  93.     Same.     Alteration,  construction,  addition  to,  repair. 

In    filing   a   claim    of   lien,    one   must   consider   whether   the 

"  Selden  v.  Meeks,  17  Gal.  128,  132,  decided  under  the  act  of  April 
19,  1856  (Stats.  1856,  p.  203,  §1),  providing  that  "artisans,  builders, 
mechanics,  lumber  merchants,  and  all  other  persons  performing  labor 
or  furnishing  materials  for  the  construction  or  repairing  of  any 
building,  wharf,  or  other  superstructure  shall  have  a  lien,"  etc. 

Alaska.     Compare:  Chambers  v.  Harnum^  1  Alaska  468. 

"  See  §  82,  ante. 

"  Kerr's   Cyc.   Code   Civ.   Proc,   §  1183. 


93  MATERIAL-MEN.  §  94 

contract  is  for  the  con.strnction  of  a  buildinj^,  or  for  the 
alteration,  addition  to.  or  repair  of  a  building  already  con- 
structed, and  the  statement  made  to  conform  to  the  facts 
in  the  particular  case.  If  claim  is  made  for  one  class  of 
work,  and  the  contract  or  the  proof  shows  another  class  of 
work,  the  variance  is  fatal  to  the  lien,  under  the  decisions.**^ 

Laborer.  Material-man.  A  distinction  is  drawn  between 
laborers  and  material-men  in  this  connection.  While  a 
laborer  performing  labor  upon  any  of  the  objects  enumerated 
above  may  have  a  lien  on  the  propei'ty,  a  material-man  seems 
to  be  restricted,  under  the  provision  of  this  section,  to  the 
"  construction,  alteration,  addition  to,  or  repair  "  thereof.*^ 
If  the  work  does  not  fall  Avithin  the  definition  of  "  con- 
struction, alteration,  addition  to,  or  repair ''  of  the  objects 
mentioned,  it  is  not  within  the  purvicAV  of  this  clause  of  the 
section  of  the  California  code,  so  far  as  the  lien  of  a  material- 
man is  concerned.*^ 

§  94.  Same.  Extent  of  alteration  or  repair.  The  "  altera- 
tion "  of  a  building  need  not  necessarily  be  as  to  its  frame- 
work, or  a  change  in  its  form  or  structure.  If  the  alteration 
is  such  as  to  adapt  it  to  other  than  its  original  uses,  it  is 
sufficient.  Thus  where  machinery  was  furnished  to  be 
used,  and  was  used,  as  a  part  of  a  building,  to  convert  it 

«  Eaton  V.  Malatesta,  92  Cal.  75,  76,  28  Pac.  Rep.  54;  Wagner  v. 
Hansen,  103  Cal.  104,  107,  37  Pac.  Rep.  195;  Fernandez  v.  Burleson,  110 
Cal.  164,  167,  42  Pac.  Rep.  566,  52  Am.  St.  Rep.  77  (description  must  be 
sufficient");  Santa  Monica  L.  &  M.  Co.  v  Hege,  119  Cal.  376.  380,  381, 
51  Pac.  Rep.  555  (variance  between'  pleading  and  proof;  incorrect 
statement  as  to  price).  See  McGinty  v.  Morgan.  122  Cal.  103.  105,  54 
Pac.  Rep.  392;  Wilson  v.  Nugent,  125  Cal.  280,  283,  57  Pac.  Rep.  1008; 
Morrison  v.  Willard,  17  Utah  306,  309,  311,  53  Pac.  Rep.  832,  70  Am.  St. 
Rep.  786,  7S7. 

But  see  Ward  v.  Crane,  118  Cal.  676,  677,  50  Pac.  Rep.  839  (when 
contract  was  to  demolish  old  and  erect  new  building,  some  materials 
from  old  going  into  new  building,  claim  for  new  building  held 
sufficient). 

See  "  Labor  for  Which  a  Lien  is  Given,"  §§130  et  seq.,  post;  and 
"Object  of  Labor,"   §§166   ot   seq.,   post. 

"  Palmer  v.  Lavigne,  104  Cal.  30,  32,  37  Pac.  Rep.  775  (a  lien  for 
labor).  See  Williams  v.  Santa  Clara  M.  Assoc,  66  Cal.  193,  197,  5  Pac. 
Rep.  85,  4  West  Coast  Rep.  616. 

See  "Nature  of  Labor,"  §S  130  et  seq.,  post. 

**  But,  as  shown  below,  the  practical  application  of  this  distinction 
Is  very  much  limited  by  the  fact  that  if  the  material  is  affi.xed  it  la 
sufficient  for  the  lien. 


§§  95, 96  mechanics'  liens.  94 

into  a  sugar-refinery,  a  lien  was  given,  on  the  theory  that  the 
work  was  "  construction  "  or  "  repair  "  of  the  building.*" 

§  95.  Same.  Fixtures.  li  the  material  becomes  part  of 
the  building  or  affixed  to  it,  it  is  a  sufficient  use  of  the 
material  to  enable  the  material-man  to  have  a  lien,  under 
the  statute. ^°  Thus  placing  a  pump  in  the  basement  of  a 
water-works,  which  is  planted  in  the  ground,  and  connected 
with  pipes  so  as  to  admit  the  steam  and  water,^^  falls  Avithin 
the  principle  just  enunciated. 

§  96.  Same.  In  mining  claims  and  mines.  The  work  of 
"  drifting  in  a  tunnel  "  on  a  mine  is  not  such  "  construction, 
alteration,  addition  to,  or  repair  of  any  building  or  improve- 
ment, or  in  a  mining  claim,"  within  the  meaning  of  section 
eleven  hundred  and  eighty-three  of  the  Code  of  Civil  Pro- 
cedure.^^  Without  doing  violence  to  the  received  meaning 
of  language,  a  "  mine,"  or  pit  sunk  within  a  mining  claim, 
may  be  called  a  structure.  Strictly  speaking,  a  "  mining 
claim  "  cannot  be  constructed,  altered,  or  repaired." 

49  Donahue  v.  Cromartie,  21  Cal.  80,  86  (act  of  April  19,  1856,  §  1, 
under  which  this  case  was  decided,  gave  material-man  a  lien  for 
materials  furnished  "  for  the  construction  or  repairing  of  any  building, 
wharf,  or  other  superstructure").  See  Goss  v.  Helbing,  77  Cal.  190, 
191,  19  Pac.  Rep.  277  (pump  for  water-works  comes  within  mechanic's- 
lien  law  when). 

5»  Donahue  v.  Cromartie,  21  Cal.  80,  86;  Goss  v.  Helbing,  77  Cal. 
190,  191,  19  Pac.  Rep.  277. 

Colorado.  A  furnace  must  be  so  affixed  to  a  building  as  to  become 
a  fixture  and  part  of  the  realty,  and  thus  lose  its  character  as  personal 
property,  to  form  the  basis  of  a'lien:  Michael  v.  Reeves,  14  Colo.  App. 
460,  60  Pac.  Rep.  577   (under  3  Mills's  Ann.  Stats.,  1st  ed.,  §  2867). 

Montana.  A  cover  for  a  stovepipe-flue,  opening  into  a  chimney  from 
the  interior  of  a  building,  and  removable  when  such  flue  was  to  be 
used,  is  not  a  fixture,  and  does  not  enter  into  the  construction  of  a 
building,  and  will  not  support  a  lien  therefor:  Missoula  Mercantile  Co. 
V.  O'Donnell,  24  Mont.  65,  60  Pac.  Rep.  594,  991. 
'  "  Goss  V.  Helbing,  77  Cal.  190,  191,  19  Pac.  Rep.  277. 

=2  Jurgensen  v.  Diller,  114  Cal.  491,  493,  46  Pac.  Rep.  610,  55  Am.  St. 
Rep.  83. 

ra  Helm  V.  Chapman,  66  Cal.  291,  293,  5  Pac.  Rep.  352,  5  West  Coast 
Rep.  127;  Williams  v.  Santa  Clara  M.  Assoc,  66  Cal.  193,  197,  5  Pac. 
Rep.  85,  4  West  Coast  Rep.  616;  W'illiams  v.  Mountaineer  G.  M.  Co., 
102  Cal.  134,  141,  34  Pac.  Rep.  702,  36  Id.  388  (before  amendment 
Of  1903). 

Labor  and  material  in  mine.  Whether  a  lien  is  given  for  materials 
furnished  for  work  of  any  kind  in  a  mining  claim,  will  be  discussed 
hereafter:  See  §99,  post. 


95  MATERIAL-MEN,  §§  97-99 

§  97.  Same.  Street-work,  grading,  etc.  It  seems  ques- 
tionable whether  a  lien  is  given  to  a  mere  material-man 
under  section  eleven  hundred  and  ninety-one  of  the  Code  of 
Civil  Procedure,  providing  for  grading,  street-work,  etc., 
in  incorporated  cities.^*  as  the  statute  provides  that  the 
person  performing  the  designated  work  "  has  a  lien  upon 
said  lot  for  the  work  done  and  materials  furnished."  The 
use  of  the  word  "  and  "  indicates  that  the  labor  and  ma- 
terials are  in  the  conjunctive. 

§  98.  Same.  Nature  of  property  for  which  material  must 
be  furnished.^^  Generally.  The  general  character  of  the 
property  upon  which  a  lien  for  materials  is  given,  as  dis- 
tinguished from  the  nature  of  the  work  on  it,  upon  which  a 
lien  must  be  based  under  section  eleven  hundred  and  eighty- 
three,^^  seems  to  be  generally  the  same  as  that  for  which  a 
laborer's  lien  is  given. 

§  99.  Same.  Mines  and  mining  claims.  But  there  are 
several  exceptions,  apparently,  which  will  be  noted  at  this 
place.  Section  eleven  hundred  and  eighty-three  of  the  Code 
of  Civil  Procedure,  as  amended  in  1903,  does  not  seem  to 

"  As  to  the  constitutionality  of  tliis  section,  see  §  34,  ante.  This 
section  of  the  code  seems  to  require  that  the  person  furnishing  the 
materials  must  also  perform  work,  in  order  to  obtain  a  lien;  and 
probably  such  work  does  not  fall  within  the  provisions  of  the  general 
section  (Kerr's  Cye.  Co«le  Civ.  Proc,  §  11S3)  giving  a  lien  to  material- 
men; for  the  work  enumerated  in  §  1191,  Kerr's  Cyc.  Code  Civ.  Proc, 
does  not  seem  to  be  work  done  in  the  "  construction,  alteration,  addi- 
tion to,  or  repair  "  of  the  objects  mentioned  in  §  1183,  Kerr's  Cyc.  Coile 
Civ.  Proc,  unless,  perhPvps,  "  sidewalks,  areas,  vaults,  cellars,  rooms 
under  a  sidewalk,  or  improvements  in  connection  therewith  "  may  be 
considered  as  coming  within  the  expression  "  other  structure,"  as 
used  in  §  1183,  Kerr's  Cyc.  Code  Civ.  Proc.  The  expression  in  §  1191, 
"  any  person  who  .  .  .  otherwise  improves  the  same,"  has  reference 
to  the  work,  and  not  to  the  character  of  the  property,  and  whether 
the  expression  of  the  same  section,  "  make  any  improvement  in  con- 
nection therewith,"  refers  to  the  work  or  to  the  character  of  the 
property  does  not  seem  to  have  been  specially  dwelt  upon  by  the 
court,  although  the  tendency  appears  to  be  to  refer  it  to  the  former, 
rather  than  to  the  latter.  See  Warren  v.  Hopkins,  110  Cal.  506,  42  Pac. 
Rep.  986;  Davis  v.  MacDonough,  109  Cal.  547,  550,  42  Pac.  Rep.  450. 
See  "Nature  of  Property";  and  see  particularly  work  under  §1191, 
Kerr's  Cyc  Code  Civ.  Proc,  and  §§  139,   156   et  seq.,  post. 

"  See  §  87,  ante. 

^  Kerr's  Cyc  Code  Civ.  Proc,  §  1183. 


§  100  mechanics'  liens.  96 

give  a  lien  for  materials  furnished  by  a  mere  material-man 
for  a  mining  claim,  or  in  or  upon  real  property  worked  as 
a  mine,  in  the  following  clause,  except  by  implication :  "  Any 
person  who  performs  labor  in  any  mining  claim  or  claims,  or 
in  or  upon  any  real  property  worked  as  a  mine,  either  in 
the  development  thereof  or  in  working  thereon  by  the  sub- 
tractive  process,  has  a  lien  upon  the  same,  and  the  works 
owned  and  used  by  the  owners  for  reducing  the  ores  from 
such  mining  claim  or  claims,  or  real  property  so  worked  as 
a  mine,  for  the  work  or  labor  done  or  materials  furnished 
by  each  respectively." 

§  100.  Same.  Lien  allowed.  The  court  has,  however, 
construed  this  section  as  giving  a  lien  to  a  material-man  for 
materials  furnished  for  such  "  mining  claim  "  under  a  pre- 
ceding general  clause,  on  the  theory  that  a  "  mining  claim  " 
is  a  "  structure,"  and  therefore  falls  within  the  category  of 
"  other  structures  "  upon  which  a  lien  for  material  is  given, 
when  furnished  for  the  "  construction,  alteration,  addition 
to,  or  repair  "  thereof.^" 

"  Silvester  v.  Coe  Quartz  M.  Co.,  80  Cal.  510,  512,  22  Pac.  Rep.  217. 
This  case  rested  upon  Helm  v.  Chapman,  66  Cal.  291.  5  Pac.  Rep.  352, 
which  construed  §  1183,  Kerr's  Cyc.  Code  Civ.  Proe.,  as  it  stood  before 
1885,  giving  a  lien  for  materials  upon  "  any  mining  claim  ...  or 
other  structure."  The  case  last  cited  was  to  foreclose  a  laborer's 
lien,  and  decided  simply  that  a  "  mine  "  or  pit  sunk  within  a  mining 
claim  might  be  called  a  "  structure,"  and  had  particular  reference  to 
§  1185,  Kerr's  Cyc.  Code  Civ.  Proc,  providing  for  the  extent  of  the 
lien  on  the  land  upon  which  any  "  building,  improvement,  or  struc- 
ture "  was  constructed.  See  California  Powder  Works  v.  Blue  Tent 
Consol.  H.  G.  M.  (Cal.),  22  Pac.  Rep.  391;  Hamilton  v.  Delhi  M.  Co., 
118  Cal.  148,  153,  50  Pac.  Rep.  378;  Williams  v.  Mountaineer  M.  Co., 
102  Cal.  134,  140,  34  Pac.  Rep.  702,  36  Id.  388.  §  1183,  Kerr's  Cyo.  Code 
Civ.  Proc.,  up  to  the  time  of  its  amendment  in  1885.  so  far  as  this 
question  is  concerned,  read:  "Mechanics,  material-men,  artisans, 
architects,  and  laborers  of  every  class  performing  labor  upon  or 
furnishing  materials  to  be  used  in  the  construction,  alteration,  or 
repair  of  any  mining  claim,  building,  wharf,  bridge,  ditch,  flume, 
aqueduct,  tunnel,  fence,  machinery,  railroad,  wagon-road,  or  other 
structure,  shall  have  a  lien,"  etc.,  and  it  was  under  this  provision  that 
the  leading  case  of  Williams  v.  Santa  Clara  M.  Assoc,  66  Cal.  193,  197, 
5  Pac.  Rep.  85,  4  West  Coast  Rep.  616,  was  decided.  The  subsequent 
cases  followed  this  case,  apparently  without  observirtg  the  change  in 
the  statute,  and  although  by  the  amendment  of  1885  the  words  '•  min- 
ing claim  "  were  stricken  out  from  the  properties  enumerated  in  the 
first  clause,  and  a  separate  clause  providing  for  mining  claims  was 
inserted,  as  shown  above,  thus  making  a  special  mining-claim  clause, 


97  MATERIAL-MEN.  §  101 

§  101.  General  rights  of  material-men.  The  rights  of 
material-men  have  their  roots  in  the  constitution  of  Califor- 
nia, and  they  have  a  constitutional  mandatory  lien.^^  Their 
general  rights  and  remedies  are  in  many  respects  similar  to 
those  of  subcontractors.^® 

The  general  rules  as  to  privity  of  contract  apply.  Thus 
the  original  contractor  is  not  liable  to  the  subcontractor's 

substantiaHy  the  same  as  it  stood  in  1874  and  before  it  was  modified 
in  1880.  However,  in  Williams  v.  Mountaineer  M.  Co.,  102  Cal.  134, 
139,  34  Pac.  Rep.  702,  36  Id.  388,  this  change  was  noticed,  and  the 
court  said:  "The  use  of  the  phrase  'other  structure,'  in  the  above 
extract,  shows  that  the  word  '  structure  '  comprehends  all  the  prop- 
erties specifically  enumerated,  and  is  broad  enough  to  include  any 
similar  thing  constructed,  should  the  enumeration  prove  incomplete. 
Following  this  with  the  language,  'and  any  person  who,'  it  would 
seem  to  show  that  a  mining  claim  was  not  included  in  the  structures 
upon  which  liens  were  allowed,  .  .  .  and  the  proceeding  provided  for." 
See  Parke  and  Lacy  Co.  v.  Inter  Nos  O.  &  D.  Co.,  147  Cal.  490,  82  Pac. 
Rep.  51  (materials  furnished  for  a  well,  under  first  clause  of  §  1183, 
Kerr's   Cyo.   Code   Civ,   Proc.). 

See  also  "Nature  of  Labor,"  §§130  et  seq.,  post;  and  "Character  of 
Property,"  §§  166  et  seq.,  post. 

Utah.     Mill,   manufactory,   hoisting-works:    Rev.    Stats.,    §  1397. 

Wyoming.     Materials  for  mining  claim:  Rev.  Stats.  1899,  §2869. 

»"  Cal.  Const.  1879,  art.  xx,  §  15,  Henning's  General  Laws,  p.  civ. 

Maferial-mnn's  right  to  lien  upon  the  property  for  which  he  has 
furnished  the  material  is  of  constitutional  creation,  and  is  based  upon 
the  theory  that  he  has  an  equitable  right  to  payment  for  it  from  the 
owner  of  the  building  into  which  it  has  gone:  Hampton  v.  Christen- 
sen,  148  Cal.  737.  84  Pac.  Rep.  200;  Humboldt  Mill  Co.  v.  Crisp,  146 
Cal.  686,  81  Pac.  Rep.  31,  106  Am.  St.  Rep.  75,  2  Am.  &  Eng.  Ann.'cas. 
811;  Los  Angeles  Pressed  Brick  Co.  v.  Los  Angeles  P.  B.  &  D.  Co. 
(Cal.  App.,  .Ian.  23,  1908),  94  Pac.  Rep.  775. 

Furnishing  material  for  use  in  building  is  basis  for  Hen  under 
Statute:  Los  Angeles  Pressed  Brick  Co.  v.  Los  Angeles  P.  B.  &  D.  Co., 
supra. 

^^  See  §§71-76,  ante;  "Notice  to  Ownor";  "Impairment  of  Liens"; 
"Alteration  of  Contract";  "Waiver";    "Time  of  Filing  Claim." 

Per.sonal  Motion  against  purchaser  of  material:  See  Davies-Hender- 
son  L.  Co.  V.  Gottschalk,  81  Cal.  641,  647,  22  Pac.  Rep.  860  (against 
contractor). 

See  "Cumulative  Remedies,"  §§638  et  seq.,  post;  also  "Bond,"  §§281 
et  seq.,  post;  "Sureties,"  §§605  et  seq.,  post;  "Answer,"  §§  738  et  seq., 
post;    "  Estoppel  by  Knowledge  of  Void  Contract,"  §§  319  et  seq.,  post'. 

Enforeement  of  lien  independently  of  contraot:  See  Kerr'.s  Cye. 
Code  Civ.  Proc.  §5  11  S3.  1184,  1202,  and  notes;  "Void  Contract,"  §§319 
et  seq.,  post;  "Conspiracy,"  §314,  post;  "Payments,"  §§  2G0  et  seq., 
post.  As  to  abandonment  by  original  contractor,  see  Kerr's  Cye.  Code 
Civ.  Proe.,  §§  1183,  1184,  and  notes;  §  358,  post;  "  Obligations  of  Owner  " 
§  127,   post. 

As  to  privity  of  eontract  between  contractor's  material-man  and 
owner,  see  Simpson  v.  Gamache,  134  Cal.  216,  218,  66  Pac.  Rep.  222. 
Mech.  Liens  —  7 


§§  102  mechanics'  ijens.-  98 

material-men,  in  the  absence  of  privity."''  The  material-man 
must  perform  his  contract,  under  the  ireneral  principles  of 
law,  unless  prevented  by  the  purchaser."^  The  OAvner.  who 
is  also  a  member  of  a  firm  of  material-men.  furnishing 
materials  for  the  building,  seems  also  to  have  some  of  the 
rights  of  a  material-man,  as  such.''- 

]\Iaterial-men  have  a  right  of  action  upon  the  bond  given 
b.y  a  contractor,  when  materials  or  "  supplies  "  have  been 
furnished  and  used  for  work  on  public  buildings,  excavating, 
or  other  mechanical  work,  under  the  act  of  March  27,  1897."^ 

Material-men  under  a  contractor,  iu  all  cases,  have  priority 
as  to  their  liens  over  subcontractors  under  the  same  con- 
tractor;®* but,  as  heretofore  shown,  they  stand  in  the  same 
rank  with  the  other  constitutional  mandatory  liens."^ 

When  materials  are  furnished  for  use  in  a  building  or  im- 
provement, and  have  not  actually  been  used,  they  are  sub- 
ject to  execution,  attachment,  or  other  legal  process,  at  the 
instance  of  the  material-man,  only  to  enforce  the  debt  for 
the  purchase-money.^® 

§  102.  General  obligations  of  material-men.  Generally 
speaking,  the  duties  which  material-men  owe  to  the  o\ATier 
or  purchaser  are  the  measure  of  their  rights.  Thus  the  duties 
to  give  notice  to  intercept  payments,  or  to  file  a  claim  of 
lien,  or  to  carry  out  their  contracts,  and  the  like,  are  all 
necessary,  in  order  to  secure  and  preserve  the  material-man's 
rights  as  against  the  owner,  and  it  is  therefore  not  necessary 
to  repeat  here  what  was  said  elsewhere.®'^ 

•"  Kruse  V.  Wilson,  3  Cal.  App.  91,  84  Pac.  Rep.  442. 

"  See  San  Pedro  L.  Co.  v.  West  (Cal.  App.),  86  Pac.  Rep.  99,3. 

«=  See  Dunlop  v.  Kennedy  (Cal.,  Aug.  31,  1893),  34  Pac.  Rep.  92. 

"•■'•   Cal.    Stats.    1897,   p.    201.   Henning'.s  General   Laws,   p.    1104. 

See  "  Rights  of  Subcontractors,"  §§  70-75,  ante. 

Hatvaii.  A  material-man  of  a  subcontractor  has  a  lien,  although  he 
has  no  contract  with  the  owner,  and  may  rely  both  on  the  lien  and  on 
the  personal  liability  of  the  subcontractor:  Hackfeld  v.  Hilo  R.  Co.,  14 
Hawn.  448,  452. 

0*  Kerr's  Cyo.  Code  Civ.  Proe..  §  1194,  and  note. 

See  "  Priorities,"  §§  486  et  seq.,  post. 

»  See  §  37,  ante. 

•■•«  Kerr's   Cyo.   Corte   Civ.   Proe.,  gS  690.    1196,   and   notes. 

See  "Cumulative  Remedies,"  §§638  et  seq.,  post;  "Provisional 
Remrdies."   §§fi-l5   et  seq.,   post. 

"  See  §  S2,  ante. 


99  MATERIAL- MEN.  §  103 

§  103.  Same.  Knowledge  of  terms  of  original  contract. 
Fraud.  The  contractor's  material-man  is  not  required  to 
concern  himself  with  the  question  as  to  whether  or  not 
material  ordered  by  the  contractor  measures  up  to  the 
requirements  of  the  original  contract.  His  contractual  re- 
lations are  solely  with  the  contractor  dealing  with  him.  and 
he  simply  furnishes  material  as  directed  by  the  part}^  with 
whom  he  contracts.  He  is  under  no  legal  obligation  to  the 
owner  to  see  to  it  that  the  contractor  complies  Avith  his 
contract,  and,  so  far  as  his  right  to  a  lien  is  concerned,  is 
warranted  in  assuming  that  the  contractor  is  fulfilling  his 
contract  with  the  owner.  This  is  true,  notwithstanding  he 
may  know  that  material  ordered  may  not  be  in  all  respects 
as  provided  by  the  original  contract  on  file.  That  contract 
is  subject  to  change  and  modification  in  such  matters  by 
the  parties  thereto  —  the  OAvner  and  original  contractor  — 
without  notice  to  other  parties;  and  such  material-man  has 
a  right  to  assume  that  no  fraud  is  being  perpetrated  by  the 
contractor  upon  the  owner  in  the  use  of  the  materials 
ordered ;  and  in  the  absence  of  fraud  or  conspiracy,  the 
material-man's  lien  is  not  affected  bv  such  knowledge. ^^ 


^  Howe  V.  Schmidt  (Cal.  Sup.,  June  22,  1907),  90  Pac.  Rep.  1056. 
See  §  85,  ante. 


j§  104, 105  mechanics'  liens.  100 


CHAPTER    VII. 

PEESONS  PEEFORMINO  LABOR. 

§  104.  Scope  of  chapter. 

§  105.  Statutory  provision. 

§  106.  Constitutiomil  provision. 

§  107.  Laborer   distinguished   from   contractor,   subcontractor,   and   ma- 
terial-man. 

§  108.  Laborer  does  not  create  intermediate  lien-holders. 

§  109.  Personal  services. 

§  110.  Definitions.     Various  kinds  of  laborers. 

§  111.  Nature  of  labor  for  which  lien  is  given. 

§  112.  General  rights  of  laborers.     Similar  to  those  of  material-men. 

§  113.  Same.     Priorities. 

§  114.  Same.     Material-man's  laborers. 

§  115.  Same.     Death  of  employer. 

§  116.  Same.     Public  work. 

§  117.  General  obligations  of  laborers. 

§  118.  Same.     Death  of  employer. 

§  104.  Scope  of  chapter.  The  general  classification  of 
persons  performing  labor,  without  reference  to  the  particular 
character  of  the  work,  and  the  general  rights  and  obliga- 
tions,^ will  be  briefly  considered  in  this  chapter,  leaving  the 
development  thereof  to  subsequent  portions  of  the  work. 

§  105.  Statutory  provision.  Section  eleven  hundred  and 
eighty-three  of  the  Code  of  Civil  Procedure  enumerates: 
"  Mechanics,  .  .  .  artisans,  architects,  machinists,  builders, 
miners,  and  all  persons  and  laborers  of  every  class  perform- 
ing labor  upon  or  furnishing  materials  to  be  used  in  the 
construction,  alteration,  addition  to,  or  repair,  either  in 
whole  or  in  part,"  of  the  objects  set  forth  in  the  section, 
"  shall  have  a  lien  upon  the  property  upon  which  they  have 
bestowed  labor  or  furnished  materials,  for  the  value  of  such 
labor   done   and  materials  furnished;  .  .  .  and   any  person 

'  >Vn!4liiiigton.  See,  generaUy,  Vincent  v.  Snoqualmie  M.  Co.,  7  Wash. 
566,   35   Pac.   Rep.    396. 


101  PERSONS   PERFORMING   LABOR.  §§  lOG-108 

who  performs  labor  in  any  mining  claim  or  claims,  or  in  or 
upon  any  real  property  worked  as  a  mine,  either  in  the 
development  thereof  or  in  working  thereon  by  the  subtrac- 
tive  process,  has  a  lien  upon  the  same  .  .  for  the  work  or 
labor  done  or  materials  furnished  by  each  respectively."  ^ 

§  106.  Constitutional  provision.  Of  the  persons  enumer- 
ated in  section  eleven  hundred  and  eighty-three  of  the  Code 
of  Civil  Procedure,  "  mechanics,  artisans,  and  laborers  of 
every  class  "  are  specifically  mentioned  in  the  constitution.^ 
Before  the  adoption  of  the  constitution  of  1879,  section 
eleven  hundred  and  eighty-three  enumerated  only  one  gen- 
eral class,  namely,  "  every  person  performing  labor  upon  " 
the  properties  therein  mentioned.* 

§  107.  Laborer  distinguished  from  contractor,  subcon- 
tractor, and  material-man.  The  persons  enumerated  in  sec- 
tion eleven  hundred  and  eighty-three  are  clearly  distinguish- 
able from  the  classes  heretofore  treated;  namely,  original 
contractors,  subcontractors,  and  material-men.  Thus  the 
owner's  laborer,  or  a  person  directly  employed  by  the  owner 
to  do  personal,  manual  labor  upon  a  building,  is  not  an 
original  contractor.^ 

§  108.  Laborer  does  not  create  intermediate  lien-holders. 
When    a   person,    who    would   be   classified   as    a   "  laborer," 

*  Kerr's  Cyc.  Code  Civ.  Proc,  §  1183. 

»  Cal.  Const.   1879.  art.   xx,  §  15,  Hennins'.s  General   I.a^vs,  p.   civ. 
See  "  Classification,"  §§  42-44,  ante,  and  also  §§  28,  37,  ante. 

*  In  the  discussion  of  this  subject,  the  laborer,  mechanic,  etc., 
employed  by  the  owner  to  give  his  personal  services  will  be  desig- 
nated as  the  "owner's  laborer,"  "owner's  mechanic,"  etc.;  those  of  the 
original  contractor,  as  the  "original  contractor's  laborer,"  etc.:  of  the 
subcontractor,  as  the  "subcontractor's  laborer,"  etc.;  of  the  material- 
man, as  the  "material-man's  laborer,"  etc. 

"Person  perforniiiiK'  labor"  is  a  generic  expression,  more  exten- 
sive in  meaning  than  '  laborer,"  but  in  the  following  discussion  the 
word  "laborer"  will  generally  be  used,  as  more  convenient,  for 
that  phrase. 

=  See  Sparks  v.  Butte  County  G.  M.  Co.,  55  Cal.  389,  392  (dictum). 

See  "Original  Contractor,"  §§45-65,  ante. 

In  IVIaloue  v.  Big  Flat  Gravel  MiniuK  Co.,  76  Cal.  578,  585,  18  Pac. 
Rep.  772,  the  original  contractor's  laborers  are  rather  loosely  termed 
*'  subcontractors." 


i^^  109,  110  mechanics'  liens.  102 

enters  into  a  contract  whereby  he  may  create  intermediate 
lien-holders  bj'  contracts  with  others,  to  whom  he  is  liable, 
he  ceases  to  be  a  "  laborer,"  and  falls  into  one  of  the  other 
classes.* 

§  109,  Personal  services.  The  contracts  of  "  laborers  " 
seem  to  be  to  labor  personally,  and  not  to  furnish  labor;  to 
work,  and  not  for  work  to  be  done.^ 

§  110.  Definitions,  Various  kinds  of  laborers.  Many  of 
the  terms  mentioned  above  are  more  or  less  synonymous, 
although  clear  distinctions  can  be  draAvn  between  some  of 
them;  the  degree  of  skill,  the  character  of  the  work,  and 
the  relation  to  the  actual,  ultimate  work,  being  the  principles 
of  differentiation.  Various  definitions  will  be  found  in  the 
note.^ 

•  See  "  Original  Contractor,"  §§  45-65;  "  Subcontractor,"  §§  66,  76,  ante. 

'  See  Malone  v.  Big  Flat  G.  M.  Co.,  76  Cal.  578,  585,  18  Pac.  Rep.  772. 

Utah,     But  see  Rev.  Stats.,  §  1383. 

"  Architects  will  be  fully  treated  in  chapter  viii,  post.  See  Libbey 
V.  Tidden,  192  Mass.  175,  7  Am.  &  Eng.  Ann.  Cas.  617.  See  also  authori- 
ties 2  Am.  &  Eng.  Ann.  Cas.  714;    7  Am.  &  Eng.  Ann.  Cas.  617. 

Builder.  "One  who  or  that  which  builds;  especially,  one  who  fol- 
lows the  occupation  of  building  or  who  controls  and  directs  the  actual 
work  of  building":  Standard  Dictionary.  "1.  One  who  builds;  one 
whose  occupation  is  to  build,  as  a  carpenter,  a  shipwright,  or  a  mason. 
'  In  the  practice  of  civil  architecture  the  builder  comes  between  the 
architect  who  designs  the  work  and  the  artisan  who  executes  it'": 
Webster.  "  One  who  builds,  or  whose  occupation  is  that  of  building; 
specifically,  one  who  controls  or  directs  the  work  of  construction  in 
any  capacity":  Century  Dictionary. 

Artisan.  "  One  trained  to  manual  dexterity  in  some  mechanic  art 
or  trade;  a  handicraftsman;  a  mechanic":  Webster.  "One  who  prac- 
tises an  industrial  art;  a  trained  workman;  superior  mechanic;  dis- 
tinguished from  '  artist."  .  .  .  The  man  who  constructs  anything  by 
mere  routine  and  rule  is  a  mechanic.  The  man  whose  work  involves 
thought,  skill,  and  constructive  power  is  an  artificer.  The  hod-carrier 
is  a  laborer;  the  bricklayer  is  a  mechanic;  the  master  mason  is  an 
artificer.  Those  who  operate  machinery  nearly  self-acting  are  oper- 
atives": Standard   Dictionary. 

Mechanic,  "  One  who  works  with  machines  or  instruments;  a 
workman  or  laborer,  other  than  agricultural;  an  artisan;  an  artificer; 
more  specifically,  one  who  practises  any  mechanic  art.  one  skilled  or 
employed  in  shaping  and  uniting  materials,  as  wood,_  metal,  etc.,  into 
any  kind  of  structure,  machine,  or  other  object,  requiring  the  use  of 
tools,  or  instruments";  Webster.  "One  skilled  in  the  mechanic  arts 
or  exercising  a  mechanical  employment;  one  who  has  the  art  of  using 
tools  in  shaping  wood,  metal,  etc.;  a  handicraftsman;  an  artisan": 
Standard  Dictionary.     "A  maker  of  machines  or  machinery;    hence,  any 


103  PERSONS  PERFORMING  LABOR.  §  111 

§  111.  Nature  of  labor  for  which  lien  is  given.  Although 
a  person  may  clearly  fall  within  the   general  definition   of 

skilled  worker  with  tools;  one  who  has  learned  a  trade,  a  workman 
whose  occupation  consists  in  the  systematic  manipulation  and  con- 
structive shaping  or  application  of  materials;  an  artificer,  artisan,  or 
craftsman":  Century  Dictionary. 

Arizona.     Rev.  Stats.,  §  2258. 

In  Selden  v.  Meeks,  17  Cal.  128,  132,  the  "contractor"  is  called  a 
"  mechanic." 

Machini.st.  "A  constructor  of  machines  and  engines;  one  versed  in 
the  principles  of  machines":  Webster.  "1.  One  who  makes  or  repairs 
macliines.  or  is  versed  in  their  design  or  construction,  or  in  the  use 
of  metal-working  tools.  2.  (Rare.)  One  who  tends  a  machine":  Stan- 
dard Dictionary.  "  1.  A  constructor  of  machines  and  engines,  or  one 
versed  in  the  principles  of  machines;  in  a  general  sense,  one  who 
invents  or  constructs  mechanical  devices  of  any  kind":  Century 
Dictionary. 

.^liner.  "One  who  mines;  a  digger  for  metals  and  other  minerals": 
Webster.  "  1.  One  who  mines,  in  any  sense;  especially,  one  whose 
occujjation  it  is  to  excavate  ore,  coal,  etc.,  in  a  mine":  Standard  Dic- 
tionary. "1.  One  who  mines;  a  person  engaged  in  digging  for  metals 
or  minerals,  or  in  forming  a  military  or  other  mine":  Century 
Dictionary. 

See  "Nature  of  Labor  in  a  Mining  Claim,"  §§  132,  149  et  seq.,  post. 

Colorado.  The  laborer's  knowledge  of  mining  does  not  seem  to 
affect  his  lien:  Ontario-Colorado  G.  M.  Co.  v.  Mackenzie,  19  Colo.  App. 
lifi.S,  7  4  Pac.  Rep.  791. 

Laborer.  "One  who  labors  in  a  toilsome  occupation;  a  man  who 
docs  work  that  requires  little  skill,  as  distinguished  from  an  artisan; 
sometimes  also  called  laboring  man":  Webster.  "One  who  performs 
physical  or  manual  labor;  especially,  one  who  for  hire  performs  any 
physical  labor  requiring  little  skill  or  training,  other  than  regu'ar 
domestic  service;  one  who  gains  a  living  by  manual  toil.  In  lien 
laws,  '  laborer '  does  not  include  contractors,  civil  engineers,  or  the 
like,  nor  hotel  cooks":  Standard  Dictionary.  "1.  One  who  labors  or 
works  with  body  or  mind,  or  both;  specifically,  one  who  is  engaged 
in  some  toilsome  physical  occupation;  in  a  more  restricted  sense,  one 
who  performs  work  which  requires  little  skill  or  special  training,  us 
distinguished  from  a  skilled  workman;  in  the  narrowest  sense,  such 
an  unskilled  workman  engaged  in  labor  other  than  that  of  a  domestic 
servant,  particularly  in  husbandry":  Century  Dictionary. 

\'ew  Mexico.  Definition  of  "laborer":  Boj'le  v.  Mountain  Key  Min. 
Co.,  9  N.  M.  237,  50  Pac.  Rep.  347. 

Per.sons  performing'  labor  in  a  mining  olalin,  etc.  These  expressions 
are  probably  intended  to  include  persons  whose  calling  is  not  that 
of  a  laborer,  or  who  do  not  gain  their  livelihood  by  labor,  but  who 
may  nevertheless  perform  some  labor  upon  a  building,  etc.,  or  in  a 
mining  claim,  etc. 

"Laborers."     See  note  58  Am.  St.  Rep.  303. 

"  l^aliorer,"  "  worlvnian."  or  "servant,"  who  is,  within  the  meaning 
of  the  statute  relating  to  mechanics'  liens:  See  notes  32  Am.  Rep.  264; 
18  L.  R.  A.  305. 

lOng'ineer.s  are  not  specifically  mentioned  in  the  California  statutes, 
and.  if  entitled  to  a  lien,  must  come  within  the  purview  of  the  other 
persons  mentioned,  for  instance,  "  laborers,"  or  "  persons  performing 
labor." 


§§112  mechanics'  liens.  104 

any  of  the  classes  named  in  this  chapter,  still  no  lien  may 
be  given,  under  the  constitution  or  the  statute.  The  labor 
must  be  "  in  or  upon  "  the  objects  enumerated  in  the  statute. 
The  nature  of  the  labor  and  its  relation  to  the  object  of  the 
labor  are  important  considerations  in  determining  whether 
a  lien  has  been  granted  by  the  law.  Furthermore,  even 
though  the  labor  be  of  the  proper  nature  and  bear  a  sufficient 
relation  to  the  object,  it  must  appear  that  the  object  itself 
is  of  the  nature  provided.  These  matters  will  be  considered 
in  detail  later." 

§  112.  General  rights  of  laborers.  Similar  to  those  of 
material-men.  The  rights  of  laborers  are  in  many  respects 
similar  to  those  of  material-men,  likewise  provided  for  in 
the  constitution.  The  rules  applying  to  and  governing  them 
are,  however,  in  some  particulars,  different.  Unlike  the 
material-man,  the  laborer  need  not  have  been  originally 
hired  to  do  the  particular  work  for  which  the  lien  is  claimed. 
Of  course,  the  laborer  must  do  the  work,  for  which  he  claims 
a  lien,  on  the  property  sought  to  be  charged  therewith,  and 
when  he  does  this,  the  nature  and  object  of  the  labor  being 
within  the  statute,  he  has  complied  with  the  law  —  he  has 
"  performed  labor  "  upon  the  particular  premises.^" 


Laborer's  lien  on  money  attached:  See  Rauer  v.  Silva,  128  Cal.  42, 
60  Pac.  Rep.  525,  and  Kerr's  Cyc.  Code  Civ.  Proe..  §  1206,  and  note. 

Action  for  services  during  construction  of  building;  breach;  rea- 
sonable value:  See  Davidson  v.  Laughlin,  13S  Cal.  320,  71  Pac.  Rep.  345. 

»  See  "  Nature  of  Labor,"  ch.  ix,  post;    "  Object  of  Labor,"  oh.  x,  post. 

See,  generally,  as  to  rights  of  employees,  Kerr'.s  Cyc.  Civ.  Code. 
§§  1965-2079,   and   notes. 

">  Ah  Louis  V.  Harwood,  140  Cal.  500,  504,  74  Pac.  Rep.  41.  The 
method  by  which  the  laborer's  compensation  is  fixed  is  immaterial, 
whether  by  the  day,  week,  or  month;  it  could  not  continue  longer 
than  the  work  on  the  building  or  structure  continued,  and  it  should 
be   treated   like   any  other  lien   for  labor   or  materials:   Id. 

Employment  as  carpenter,  at  a  fixed  rate  per  day,  for  the  erection 
or  alteration  of  a  building,  entitles  the  person  thus  employed  to  a  lien 
for  his  wages,  even  though  the  amount  exceeds,  in  the  aggregate,  one 
thousand  dollars;  and  his  claim  to  a  lien  is  not  rendered  void  by 
reason  of  the  fact  that  the  employment  was  not  under  a  contract  in 
writing,  duly  executed  and  filed,  for  the  reason  that  such  employment 
was  neither  for  a  definite  time,  nor  for  a  definite  amount  of  work: 
Farnham  v.  California  Safe  D.  &  T.  Co.  (Cal.  App.,  May  18,  1908), 
6  Cal.  App.  Dec.  721,  96  Pac.  Rep.  788. 


105  PERSONS   PERFORMING    LABOR.  §§  113-118 

§  113.  Same.  Priorities.  Laborers  stand  upon  the  same 
footing  as  other  constitutional  mandatory  lienors  with  regard 
to  the  priority  of  their  liens,  as  heretofore  shown. ^* 

§  114.  Same.  Material-man's  laborers.  A  mere  material- 
man's laborers,  however,  generally  have  no  lien,^-  and  notice 
from  such  persons  to  the  owner  to  stop  payment  to  the 
material-man  is  of  no  avail.^' 

§  115.  Same.  Death  of  employer.  When  an  employer 
dies,  and  it  is  necessary  for  the  employee  to  continue  his 
services  to  protect  the  employer's  successor  from  loss,  the 
latter  must  compensate  the  emploj^ee  for  such  services, 
according  to  the  terms  of  the  contract.^* 

§  116.  Same.  Public  v^ork.  A  person  who  performs 
labor  for  any  contractor  to  whom  is  awarded  a  contract  for 
the  execution  or  performance  of  any  building,  excavating, 
or  other  mechanical  work  for  the  state,  or  for  any  county, 
city  and  county,  city,  town,  or  district,  has  also  a  remedy 
against  the  sureties  on  the  bond  specified  in  section  one  of 
the  act  of  March  27,  1897.^^ 

§  117.  General  oblijations  of  laborers.  The  duties  of 
contractors'  and  subcontractors'  laborers,  like  those  of  their 
material-men,  are,  in  general,  the  measure  of  their  rights.^® 

§  118.  Same.  Death  of  employer.  Notice  of  the  death 
of  the  employer,  as  a  general  rule,  puts  an  end  to  an  em- 

WasIiinRton.  Lien  need  not  be  referred  to  in  the  agreement,  umJer 
2  Ballinger's  Ann.  Codes  and  Stats.,  §5902  (clearing  land):  Stringham 
V.  Davis.  23  Wash.  568.  63  Pac.  Rep.  230. 

"   See  "  Constitutional  Aspects,"  §  37,  ante. 

'^  Adams  V.  Burbank,  103  Cal.  646,  451,  37  Pac.  Rep.  640. 

See  "  Definition  of  Material-man,"  §  78.  ante. 

>»  See  Hinckley  v.  Field's  B.  &  C.  Co.,  91  Cal.  136.  140,  27  Pac.  Rep. 
594.  See  "  Definition  of  Material-man,"  §  78,  ante.  See  §§  69,  79  et  seq., 
ante. 

»  Kerr's   Cy<'.   Civ.  Code,  §  1998,   and    note. 

See  §  118,  post. 

•*  Stats,  and  Amdts.  1897,  p.  201,  Henniimr'N  GenornI  I.n^vM.  p.   1104. 

""■  See  §§  102,  103.  ante.  See,  generally,  Kerr's  Cjo.  Civ.  Code.  §§  1965- 
2003,  and  notes. 


^118  mechanics'  liens.  106 

ployment  from  month  to  month,  but  an  employee,  iinlef5s  the 
term  of  his  service  has  expired,  or  unless  he  has  a  right  to 
discontinue  at  any  time  without  notice,  must  continue  his 
service  after  notice  of  the  death  or  incapacity  of  his  em- 
ployer, so  far  as  is  necessarj^  to  protect  from  serious  injury 
the,  interests  of  the  employer's  successor  in  interest,  until  a 
reasonable  time  after  such  notice  of  the  facts  has  been  com- 
municaited  to  such  successor;  ^^  and,  in  the  absence  of  special 
circumstances,  the  period  from  January  15th  to  June  30th 
is  not  a  reasonable  time.^^ 

"  Kerr's   Cyc.   Civ.   Code,  §1998,   and   note;     Weithoff  v.   Murray,    76 
Cal.  508. 

See  §  115.   ante. 

18  Weithoff  V.  Murray,  76  Cal.   508,  510. 


107  ARCHITECTS.  §  119 


.    CHAPTER     VIII. 

ARCHITECTS. 

§  119.  Architects.     Their  regulation. 

§  120.  Statutory  provisions. 

§  121.  Definition  of  "  architect." 

§  122.  Contract  of  unlicensed  architect. 

§  123.  Rights  of  architects. 

§  124.  Right  to  lien. 

§  125.  Powers  of  architect. 

§  126.  Relation  between  owner  and  architect. 

§  127.  Same.     Agent  of  owner. 

§  128.  Architect  as  subcontractor. 

§  129.  Obligations  of  architects. 

§  119.  Architects.  Their  regulation.  The  profession  of 
architecture  has  grown  to  be  of  such  great  public  impor- 
tance, that  its  legislative  control  is  sufficiently  justified. 
]\Iodern  methods  of  construction,  and  considerations  of  public 
health  and  safety,  have  been  the  means  of  causing  the  enact- 
ment of  laws  requiring  applicants  for  certificates  to  practise 
architecture  to  be  examined  and  licensed  by  a  state  board  of 
architecture,^  and  this  legislation  has  been  held  to  be  consti- 
tutional.- 

Municipal  ordinances  and  building  rules  and  regulations 
constitute  a  body  of  law,  which,  analogous  to  "  medical  juris- 
prudence," might  properly  be  designated  "  architectural  " 
or  "  structural  "  jurisprudence,  with  which  architects  and 
engineers  are  required  by  professional  necessities  to  familiar- 
ize themselves. 

'  stats.  1901,  ch.  ccxii,  p.  641,  as  amended  by  Stats.  1903,  p.  522, 
Hi'nning's  Geiierul   Laivs,   p.    51. 

-    Kx   parte  McManus.    1  f,  1    Cal.   331,   33S,   90  Pac.   Rep.   702. 

Adoption  of  iinrosiNoniible  rules  by  the  board  of  iirchiteoture  does 
not  affect  t!ie  validity  of  the  act,  but  would  merely  constitute  a  viola- 
tion of  its  provisions:    Ex  parte  McManus,   supra. 

The  matter  is  ruled  by  tlie  principle  applicable  to  the  admission  of 
attorneys  at  law  to  practice:  Kx  parte  McManus,  supra.  See  Ex  parte 
Gerino,  143  Cal.  412,  417,  77  Pac.  Hep.  166,  66  L.  R.  A.  249;  Kx 
parte  Whitley,  144  Cal.  167,  179.  77  Pac.  Rep.  879,  1  Am.  &  Eng.  Ann. 
Cas.    13;    Kettles   v.   People,    221    111.    221,    77   N.   E.    Rep.    472;    State   v. 


§§120-122  mechanics'  LiExs.  ]08 

§  120.  Statutory  provisions.  Section  eleven  hundred  and 
eighty-three  of  the  Code  of  Civil  Procedure  provides: 
"  Architects,  .  .  .  performing  labor  upon  or  furnishing  ma- 
terial to  be  used  in  the  construction,  g,lteration,  addition 
to,  or  repair  "  of  any  of  the  structures  mentioned  therein 
have  a  lien  upon  the  property  upon  which  they  have 
bestowed  labor  or  for  Mdiich  they  have  furnished  material, 
for  the  value  of. the  same;  and  "every  .  .  .  architect,  .  .  . 
or  other  person  having  charge  of  any  mining,  or  of  the 
construction,  alteration,  addition  to,  or  repair  ...  of  any 
building  or  other  improvement,  as  aforesaid,  ,  .  .  shall  be 
held  to  be  the  agent  of  the  owner  for  the  purposes  of  this 
chapter."  ^ 

§  121.  Definition  of  "  architect."  An  architect  is  a  person 
skilled  in  the  drafting  of  plans  and  specifications  for  the 
erection  of  buildings  and  other  edifices,  and  in  the  execu- 
tion and  superintendence  thereof.  Various  other  definitions 
of  architect  are  given  in  the  note.*  Some  of  his  functions 
are  now  prescribed  by  statute. 

§  122.  Contract  of  unlicensed  architect.  It  has  been  held 
that  the  contract  of  employment  of  an  architect  is  not  ren- 
dered illegal  or  void  because  made  in  advance  of  the  issu- 
ance of  the  certificate  or  license  to  the  architect,  under  the 
act  to  regulate  the  practice  of  architecture,  approved  March 


Knowles,  90  Md.  646,  45  Am.  Rep.  877,  49  L.  R.  A.  695;  In  re  Thompson, 
36  Wash.  377,  78  Pac.  Rep.  899,  2  Am.  &  Eng.  Ann.  Cas.  149. 

3  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1183. 

Washiugrton.  Compare:  CadweU  v.  Brackett,  l  Wash.  321,  26  P^c. 
Rep.  219. 

<  Arohiteot.  "1.  One  skilled  in  practical  architecture;  one  whose 
profession  it  is  to  devise  the  plans  and  ornamentation  of  buildings  or 
other  structures  and  to  direct  their  construction.  2.  One  who  con- 
trives, plans,  makes,  or  builds  up  something;  as,  the  architect  of 
one's  own  fortune.  Once  the  architect  and  the  builder  were  one. 
Now  the  architect  may  do  no  more  than  simply  furnish  the  designs 
to  the  builder":  Standard  Dictionary.  "A  person  skilled  in  the  art  of 
building;  one  who  understands  architecture,  or  makes  it  his  occupa- 
tion to  form  plans  and  designs  of  buildings  and  superintends  the 
artificers  employed":  Webster.  "A  person  skilled  in  the  art  of 
building;  one  who  understands  architecture  and  wliose  profession 
it  is  to  form  plans  and  designs  of  buildings  and  superintend  the  exe- 
cution of  them":  Century  Dictionary. 


109  ARCHITECTS.  §  123 

23,  1901,  though,  in  order  to  carry  out  the  contract,  it  would 
be  necessary  for  the  architect  to  obtain  his  certificate.^ 

§  123.  Rights  of  architects.  The  architect  has  the  ordi- 
nary remedies  under  his  contract  with  the  owner  for  breach 
thereof.^  Where  an  owner,  under  an  entire  contract, 
employs  an  architect  to  oversee  the  construction  of  a 
building,  repudiates  the  contract  in  part  and  orders  such 
part  of  the  w^ork  not  to  be  done,  the  architect  can  either 
treat  the  repudiation  of  a  part  as  a  breach  of  the  entire  con- 
tract, and  discontinue  all  work,  or  he  can  waive  the  breach 
as  to  all  other  parts  of  the  work  not  included  in  the  part 
repudiated,  by  continuing  the  work.  By  such  repudiation 
of  part,  however,  the  architect  may  consider  the  entire  con- 
tract broken,  and  he  will  be  discharged  from  the  perform- 
ance of  further  conditions  on  his  part."  Where  there  is  an 
implied  agreement  to  pay  the  architect  the  regular  fees, 
there  being  no  evidence  of  a  custom  of  the  profession  as  to 
the  time  of  payment,  the  employer  is  liable  only  upon  com- 
pleting the  work,  and  in  the  absence  of  an  agreement  to  the 

5  Fitzhugh  V.  Ma.son,  2  Cal.  App.  220,  223,  83  Pac.  Rep.  282.  But 
see  San  Francisco  v.  Buckman,  111  Cal.  25,  29,  43  Pac.  Rep.  396;  Flinn 
V.  Mowry,  131  Cal.  481,  488,  63  Pac.  Rep.  724;  Berka  v.  Woodward,  125 
Cal.  119,  126,  57  Pac.  Rep.  777,  73  Am.  St.  Rep.  31,  45  L.  R.  A.  420; 
Kutchin  v.  Bngelbret,  129  Cal.  635,  639,  62  Pac.  Rep.  214;  Gardner  v. 
Tatum,  81  Cal.  370,  22  Pac.  Rep.  880;  Lada  v.  Hawley,  57  Cal.  51; 
Swanger  v.  Mayberry,   59  Cal.   91. 

«  Contract  for  drawing  plans  and  speciftcations  for  public-school 
house:  See  Brown  v.  Board  of  Education,  103  Cal.  531,  535,  37  Pac. 
Rep.   503. 

Arizona.  Where  the  architect  agrees  to  perform  services  In 
drafting  of  plans  and  specifications  and  superintending  the  construc- 
tion of  a  building  for  an  agreed  compensation,  the  breach  of  tlie 
contract  on  the  part  of  the  owner  is  non-payment  of  such  com- 
pensation, and  not  the  mere  refusal  of  the  owner  to  permit  the  arclii- 
tect  to  perform  the  agreed  services:  McPherson  v.  Hattich  (Ariz., 
March    30,    1906),    85   Pac.    Rep.    731. 

'  De  Prosse  v.  Royal  Eagle  Dist.  Co.,  135  Cal.  408,  411,  67  Pac.  Rep. 
502. 

Repudiation  of  part  lireacli  of  entire  contraot;  option  of  plaintiiT 
to  consider  breach  of  covenant  repudiates  breacli  of  entire  contract: 
De  Prosse  v.  Royal  Eagle  Dist.  Co.,  supra.  See  Haskell  v.  McHenry, 
4  Cal.  411;    Cockley  v.  Brucker,  54  Ohio  St.  214. 

As  to  breach  of  contract,  see  Kerr's  Cyc.  Civ,  Code,  S  3294,  note  pars. 
11,  12. 

See  "  Performance  of  Contract,  Generally,"  §§  334  et  seq.,  post. 


§§  124, 125  mechanics'  liens.  110 

contrary,  the  employer  may  discontinue  the  employment,  at 
his  option,  paying  the  architect  for  services  rendered  and 
expenses  incurred.^ 

§  124.  Right  to  lien.''  An  architect,  under  the  statute, 
occupies  a  somewhat  anomalous  position.  The  preparation 
of  plans  and  specifications  and  the  superintendence  of  the 
construction  would  seem  to  make  the  architect,  in  a  certain 
sense,  a  laborer  "in"  or  "upon"  the  property;  but  such 
lien  has  been  allowed  under  the  express  provision  of  the 
statute. ^° 

§  125.  Powers  of  architect.  Architects,  and  also  engi- 
neers, are  often  made  arbiters  as  to  the  quality  and  quantity 
of  the  Avork,  under  the  original  contract,  and,  although  the 
statutory-  or  common-laAV  agent  of  the  owner,  must  act  with 
fairness  to  all  parties  interested.  They  should  not  withhold 
stipulated    certificates    due    the    contractor,    arbitrarily    or 

8  Fitzhugh  V.  Mason,  2  Cal.  App.  220,  224,  83  Pac.  Rep.  282  (evidence, 
damage,    finding). 

»  Ri^ht  of  architect  to  a  lien:  See  notes  7  Ana.  &  Eng.  Ann.  Cas.  6, 
17:     16   L.   R.   A.   600. 

Action  by  architect,  form  :    See  6  Cyc.  46. 

Parties  :     See    6    Cyc.    46. 

Conditions  precedent:  Kerr's  Cyc.  Civ.  Code,  §  1349,  note  pars.  1-14; 
6   Cyc.   4  7. 

Idaho.     See  Lockhart  v.  Rollins.   2  Idaho  540.  21  Pac.  Rep.  413,   415. 

"  In  Ehlers  v.  Wannack,  118  Cal.  310,  50  Pac.  Rep.  433,  a  Hen  was 
allowed  for  the  reasonable  value  of  services  rendered  as  an  architect 
in  drawing  and  preparing  plans  and  specifications,  but  no  reference 
was  made  to  the  labor  of  supervision;  and  in  Pacific  Mut.  L.  Ins.  Co. 
v.  Fisher,  109  Cal.  566,  42  Pac.  Rep.  154,  there  was  a  claim  for  services 
of  an  architect  in  the  preparation  of  plans  and  specifications  and  as 
superintendent  during  the  progress  of  construction,  but  no  question 
as  to  the  architect's  rights  was  discussed. 

Colorado.  See  "  Labor  for  Which  a  Lien  is  Given,"  §§  130  et  seq., 
post. 

Xew  Mexico.  An  architect  who  prepares  plans  and  specifications 
for  a  building  and  superintends  the  construction  thereof,  explaining 
the  plans  to  the  mechanics,  personally  inspecting  the  material  and 
work,  is  entitled  to  a  lien  :  Johnson  v.  McClure,  10  N.  M.  506,  62  Pac. 
Rep.  983,  distinguishing  Boyle  v.  Mountain  Key  Min.  Co.,  9  N.  M. 
237.   50  Pac.  Rep.   347. 

Oregon.  See  Leick  v.  Beers,  28  Oreg.  483,  43  Pac.  Rep.  658;  Wil- 
lamette Falls  T.  &  M.  Co.  V.  Remick.  1  Oreg.  169. 

I'tah.  §  1372,  Rev.  Stats.,  provides  specially  for  the  drawing  of 
plans,    etc. 

W'ashington.  See  Nason  v.  Northwestern  M.  &  P.  Co.,  17  Wash.  142, 
49  Pac.  Rep.  235;    Spalding  v.  Burke,  33  Wash.  679,  74  Pac.  Rep.  829. 


HI  AKCHITECTS.  §^  126-128 

upon  caprice/^  nor  upon  objections  based  upon  their  own 
mistakes  in  formulating  the  plans  and  specifications;  ^-  and, 
of  course,  such  withholding  should  not  be  tainted  with 
fraud. 

§  126.  Relation  between  owner  and  architect.  It  has 
been  held  that  the  relation  between  the  owner  and  his  archi- 
tect is  in  no  sense  confidential,  within  the  meaning  of  the 
provision  of  the  Code  of  Civil  Procedure. ^^ 

§  127.  Same.  Agent  of  owner.  Under  the  California 
statute,  the  architect  is  made  the  agent  of  the  owner  for  the 
purposes  of  the  provisions  relating  to  mechanics'  liens,^* 
and  may  bind  the  owner  by  notice  of  the  claims  of  the  con- 
tractor's subclaimants,  to  intercept  payments  to  such  con- 
tractor.^^ The  powers  of  architects  and  engineers  as  agents 
of  the  owner,  and  the  effect  of  their  certificates,  will  be 
more  fully  considered  hereafter.^^ 

§  128.  Architect  as  subcontractor.  Where  the  architect 
is  a  subcontractor  in  the  first  degree,  his  contract  with  the 

"  Wyman  v.  Hooker,  2  Cal.  App.  36,  40,  83  Pac.  Rep.  79  (hearing 
in  supreme  court  denied).  See  AntoneHe  v.  Kennedy-Shaw  L.  Co., 
140  Cal.  309.  315,  73  Pac.  Rep.  966. 

AVaMhington.  See  Windham  v.  Independent  Tel.  Co.,  35  Wash.  166, 
76   Pac.   Rep.   936. 

"  Wyman  v.  Hooker,   2  Cal.  App.   36,   39,   83  Pac.  Rep.   79. 

Cunditious  precedent  of  tlii.ii  kind  are  to  be  .ttriotly  coustrned 
against  the  party  seeking  to  avail  himself  of  them  :  Antonelle  v.  Ken- 
nedy-Shaw L.  Co.,  supra.  See  Front  Street  M.  &  O.  R.  Co.  v.  Butler,  .'lU 
Cal.  574,  577;  Deacon  v.  Blodget,  111  Cal.  416,  418,  44  Pac.  Rep.  159; 
Southern  Pac.  R.  Co.  v.  Allen,  112  Cal.  455,  461,  44  Pac.  Rep.  796; 
Weinreich  v.  Weinreich,  18  Mo.  App.  370;  Stilwell  v.  Railroad  Co.,  39 
Mo.  App.   226. 

As  to  conditions  precedent,  see  Kerr's  Cyc.  Civ.  Code,  §  1439,  note 
pars.    1-45. 

"  See  Kerr's  Cye.  Code  Civ.  Proe.,  S  1881,  and  note. 

"   Kerr's   Cyc.   Code   Civ.    i'roc,   §    11  S3. 

Wa.sliin^ton.  The  mere  fact  that  a  person  is  employed  as  an 
ar<-liitect  does  not  constitute  such  person  the  general  agent  of  his 
employer,  his  powers  as  agent  being  limited  by  the  contract  entered 
into  between  them:  Sweeney  v.  yEtna  Indemnity  Co.,  34  Wash.  126,  74 
Pac.    Rep.    1057. 

Ah  to  powers  of  arcliitect.  see  De  Mattos  v.  Jordan,  15  Wash.  378, 
385,  46  Pac.  Rep.   402. 

'■''   Kerr's   Cyo.   Code   Civ.   l»roe.,    §    1184. 

"■  See  §§  238  et  seq.,  §§  579  et  seq.,  post. 


§  129  mechanics'  liens.  112 

original  contractor  is  not  void  when  the  owner  is  fully  con- 
versant with  the  fact,  and  his  mere  dual  position  as  subcon- 
tractor and  architect  does  not  render  the  contract  voidj  in 
the  absence  of  fraud  or  deception.^' 

§  129.  Obligations  of  architects.  Where  there  is  no 
agreement  to  the  contrary,  the  architect  is  under  no  legal 
duty  to  keep  secret  the  fact  of  a  proposed  improvement,  or 
the  plans  thereof,  and  he  is  not  liable  to  the  owner  for 
damages  by  reason  of  the  removal  of  tenants  from  the 
premises  upon  learning  of  such  intended  changes,  through 
the  publication  thereof  by  the  architect ;  nor  is  he  liable  for 
mistakes  in  the  construction,  arising  through  the  fault  of 
the  owner.^^ 

"  Orlandi  v.  Gray,  125  Cal.  372.  374,  58  Pac.  Rep.  15.  See  WiUamette 
S.  M.  &  M.  Co.  V.  Los  Ang-eles  C.  Co.,  94  Cal.  229,  239,  29  Pac.  Rep.  629. 

1"  Havens  v.  Donahue,  111  Cal.  297,  43  Pac.  Rep.  962. 

AV'asliingtoii.  Action  for  architect's  services;  damages:  See 
Spalding  v.  Burke,  33  Wash.  679,  74  Pac.  Rep.  829. 


113  LABOR   FOR   WHICH    A   LIEN    IS   GIVEN.  §  130 


CHAPTER   IX. 
LABOR    FOR    WHICH    A    LIEN    IS    GIVEN. 

§  130.  Scope  of  chapter. 

§  131.  Statutory  provisions,  generally.      Structures.    First  clause. 

§  132.  Same.     Mines.     Second  clause. 

§  133.  Same.     Grading,  etc. 

§  134.  Same.     Tliree  grand  divisions.     Generally. 

§  135.  Structures  and  mines.     In  general. 

§  136.  Importance  of  fixing  clause  under  which  case  falls. 

§  137.  Same.     Classes  not  mutually  exclusive. 

§  138.  Definition  of  labor  "  bestowed." 

§  139.  Grading  and    other    work    under    section    eleven    hundred 
and  ninety-one.     Generally. 

§  140.  Classes.     How  discussed  at  this  time. 

§  141.  "  Improvement,"  defined.     Refers  to  object. 

§  142.  Structures,  and  grading    and    other    work,    under    section 
eleven  hundred  and  ninety-one. 

§  143.  Structures.     Liens  allowed. 

§  144.  "  Construction,  alteration,  addition  to,  or  repair." 

§  145.  Same.     Importance  of  determination. 

§  146.  Character  of  alteration. 

§  147.  Distinction  between  alteration  and  repair. 

§  148.  Same.     Alteration.     Erection. 

§  149.  Work  in  mines  and  mining  claims.     Second  clause. 

§  150.  Same.     Liens  allowed. 

§  151.  Same.     Notice  of  non-responsibility.     Tunnel. 

§  152.  Same.     Drifting. 

§  153.  Same.     Running  tunnel. 

§  154.  Same.     Shaft.     Mining  instrumentalities. 

§  155.  Same.     Watchman  of  idle  mine. 

§  156.  Grading,   etc.,   under  section  eleven  hundred   and  ninety- 
one. 

§  157.  Same.     Work  not  enforceable  under  this  section. 

§  158.  Same.     Meaning  of  "  improves,"  "  improvement." 

§  159.  Same.     Relation  to  work  on  structures. 

§  160.  Same.     Liens  allowed. 

§  161.  Labor  for  which  lien  is  not  given  in  any  event. 

§  162.  Same.     Preliminary  work. 

§  163.  Same.     Teaming  for  material-man. 

§  164.  Same.     Material-man's  laborer. 

§  165.  Same.     Test,  legitimate  connection  with  work  of  mine. 
Mech.  Liens  —  8 


§§  130,  131  mechanics'  liens.  114 

§  130.  Scope  of  chapter.^  This  chapter  relates  particu- 
larly to  the  nature  of  the  labor,  and  not  to  the  place  Avhere 
or  object  upon  which  it  is  performed.  Such  object  may  fall 
within  the  purview  of  the  statute,  and  yet  no  lien  may  be 
given  thereby,  owing  to  the  inherent  nature  of  the  work, 
and  vice  versa:  IMoreover,  labor  of  a  certain  nature  may 
form  the  basis  of  a  lien  on  one  class  of  objects,  but  may  not 
necessarily  do  so  as  to  another  class,  which  may  be  within 
the  terms  of  the  statute.  Again,  the  same  labor  done  for 
one  person  with  reference  to  the  same  object  may  entitle 
one  to  a  lien,  but  may  be  otherwise  if  done  for  another 
person.  The  relation  between  the  work  for  which  a  lien  is 
claimed  and  the  work  under  the  original  contract  is  also  an 
important  consideration.  A  careful  examination  of  the 
statute  in  force  is  required  to  determine  not  only  the  force 
.of  precedents,  but  also  to  ascertain  whether  a  lien  has  been 
conferred  under  the  particular  circumstances  of  the  case,  so 
far  as  this  matter  is  concerned.  The  subject  is  closely  inter- 
woven with  that  of  the  following  chapter,  relating  to  the 
object  upon  which  the  labor  must  be  performed  to  entitle  a 
person  to  a  lien.^ 

§  131.  Statutory  provisions,  generally.  Structures.  First 
clause.  Section  eleven  hundred  and  eighty-three  of  the  Cali- 
fornia Code  of  Civil  Procedure  ^  provides :  "  Mechanics  .  .  . 
performing  labor  upon  or  furnishing  materials  to  be  used  in 
the  construction,  alteration,  addition  to,  or  repair,  either  in 
whole  or  in  part,  of  any  building  ...  or  other  structure, 
shall  have  a  lien,"  etc.  This  will  be  designated  as  the  "  first 
clause,"  or  "  structure  clause." 

1  As  to  irrigation  district,  see  Stone  v.  Harris,  146  Cal.  555,  80  Pac. 
Rep.    711. 

Idaho.  Nature  of  work  :  See,  generally,  dissenting  opinion  of 
Ailshie,  .T.,  in  Pacific  States  Sav.,  L.  &  B.  Co.  v.  Dubois,  11  Idaho  319, 
83  Pac.  Rep.  513,  518. 

Oregon.  Where  tlie  statute  gives  a  lien  for  specified  classes  of 
work,  all  other  classes  are  impliedly  excluded  :  Williams  v.  Toledo  C. 
Co.,  25  Oreg.  426,  36  Pac.  Rep.  159,  42  Am.  St.  Rep.  799. 

\Vasl»ington.  For  clearing  land  (2  Ballinger's  Ann.  Codes  and 
Stats..  §5902):    Stringham  v.  Davis,  23  Wash.   568, '63  Pac.  Rep.  230. 

'   "  Object  on  WMiich  Labor  must  be  Performed,"  §§  166  et  seq..  post. 

Montana:    See  Davis  v.  Alvord,  94  U.  S.  545,  547,  bk.  24  L.  ed.  283. 

»  Kerr's  Cjc.  Code  Civ.  Proc.,  §  1184. 


115  LABOR    FOR    WHICH    A    LIEN    IS    GIVEN.        §§  132-135 

§  132.  Same.  Mines.  Second  clause.  Section  eleven 
hundred  and  eighty-three  of  the  California  Code  of  Civil 
Procedure  further  provides:  "And  any  person  who  per- 
forms labor  in  any  mining  claim  or  claims,  or  in  or  upon 
any  real  property  worked  as  a  mine,  either  in  the  develop- 
ment thereof  or  in  working  thereon  by  the  subtractive  pro- 
cess, has  a  lien  upon  the  same,"  etc.  This  will  be  desig- 
nated as  the  "  second  clause,"  or  "  mining  clause." 

§  133.  SaiKe.  Grading,  etc.  Section  eleven  hundred  and 
ninety-one  of  the  California  Code  of  Civil  Procedure  pro- 
vides: "Any  person  who,  at  the  request  of  the  reputed 
owner  of  any  lot  in  any  incorporated  city  or  town,  grades, 
fills  in,  or  otherwise  improves  the  same,  or  the  street  or  side- 
walk in  front  of  or  adjoining  the  same,  or  constructs  any 
areas,  or  vaults,  or  cellars,  or  rooms,  under  said  sidewalks,^ 
or  makes  any  improvements  in  connection  therewith,  has 
a  lien  upon  said  lot  for  his  work  done  and  materials 
furnished." 

§  134.  Same.  Three  grand  divisions.  Generally.  Thus 
there  appears  to  be  three  grand  divisions  of  objects  upon 
which  the  labor  must  be  performed,  under  the  California 
Code  of  Civil  Procedure,  namely:  1.  Upon  structures,  under 
the  first  clause  of  section  eleven  hundred  and  eighty-three ; 
2.  In  mining  claims,  or  real  property  worked  as  a  mine, 
under  the  second  clause  of  section  eleven  hundred  and 
eighty-three;  and  3.  Grading,  etc.,  upon  lots,  streets,  side- 
walks, etc.,  under  section  eleven  hundred  and  ninety-one. 

§  135.  Structures  and  mines.  In  general.  Section  eleven 
hundred  and  eighty-three  of  the  California  Code  of  Civil 
Procedure  contains  two  distinct  and  separate  provisions 
allowing  distinct  classes  of  liens.  One  provision,  set  forth 
in  the  first  clause,  allows  a  lien  for  work  done  or  materials 
supplied  in  the  construction  of  buildings  or  excavations  on 
land,  which  are  made  in  the  nature  of  an  improvement,  to 
enhance  its  value,  or  to  make  it  more  useful,  or  vfiluable  for 
a  new  use.    The  other  provision  is  in  the  second  clause,  and 


§§  136-138  mechanics'  liens.  116 

relates  to  and  governs  the  lien  for  work  done  in  or  upon 
mines,  which  may  result  either  in  the  construction  of  an 
improvement  thereon,  or  in  the  partial  or  total  destruction 
thereof,  by  the  extraction  of  the  ore  which  gives  it  value.* 

§  136.  Importance  of  fixing  clause  under  which  case 
falls.  It  is  important  to  determine  under  which  clause  of 
section  eleven  hundred  and  eighty-three  a  case  falls,  in 
order  to  ascertain  whether  a  lien  has  been  conferred,  and  to 
ascertain  the  owner's  obligations,  and  whether  the  lien 
extends  to  the  whole  property,  or  so  much  thereof  as  is 
necessary  for  the  convenient  use  and  occupation  thereof. 

§  137.  Same.  Classes  not  mutually  exclusive.  The  two 
classes  of  objects,  and  work  done  thereon,  contained  in  sec- 
tion eleven  hundred  and  eighty-three,  are  not  mutually 
exclusive.  Any  building  or  other  structure,  at  least  for 
some  purposes,  is  transferred  from  the  first  clause  to  the 
second  whenever  it  is  an  adjunct  or  appurtenance  to  a 
mining  claim ;  and  if,  for  instance,  a  tract  of  land  upon 
which  a  well  is  being  drilled  for  the  purpose  of  extracting 
mineral  oil  is  a  mining  claim,  the  well,  notwithstanding  the 
inclusion  of  wells  in  the  enumeration  of  structures  upon 
which  separate  liens  are  allowed,  is  an  essential  part  of  the 
mining  claim,  and  for  that  reason  the  lien  of  those  who  have 
made  it  extends  to  the  whole  claim,  and  would  be  lost  if  less 
was  described  in  the  lienor's  claim  of  lien.^ 

§  138.  Definition  of  labor  "  bestowed."  By  the  use  of 
the  word  "  bestowed,"  in  section  eleven  hundred  and  eighty- 

*  Hig-g-ins  V.  Carlotta  G.  M.  Co.,  148  Cal.  700,  702,  84  Pac.  Rep.  758, 
113  Am.  St.  Rep.  344. 

Idaho.  See  Thompson  v.  Wise  Boy  M.  &  M.  Co.,  9  Idaho  363,  14 
Pac.  Rep.   958. 

=  Berentz  v.  Belmont  Oil  M.  Co.,  148  Cal.  577,  581,  84  Pac.  Rep.  47, 
113  Am.  St.  Rep.  308,  reversing  s.  c.  (Cal.  App.)  84  Pac.  Rep.  45,  and 
expIaiuiiiK  Williams  v.  Moimtaineer  G.  M.  Co.,  102  Cal.  134,  34  Pac. 
Rep.   702,   36   Id.   388. 

As  to  an  oil-well  being-  a  mine,  see  Martin's  mining  Law,  §§  70.  176, 
435. 

Colorado.  As  to  the  act  of  1893,  p.  315,  §  1  (3  Mills's  Ann.  Stats., 
§2867)  and  §8.  See.  Lindemann  v.  Belden  Consol.  M.  &  M.  Co.,  16 
Colo.  App.   342,   65  Pac.  Rep.   403. 


117  LABOR    FOR   WHICH   A   LIEN   IS    GIVEN.        §§  139-141 

three,'  instead  of  "  performed,"  the  legislature  intended 
that  the  labor  of  subcontractors  need  not  be  personal,  and 
the  expression  "  bestowed  "  means  "  used  "  or  "  placed."  ^ 

§  139.     Grading  and  other  work  under  §  1191.    Generally. 

Notwithstanding  the  decision  of  the  supreme  court  ^  hold- 
ing that  section  eleven  hundred  and  ninety-one  of  the 
Code  of  Civil  Procedure  ®  is  unconstitutional  in  so  far  as  it 
attempts  to  impose  a  lien  upon  the  lot  for  street-work  at  the 
instance  of  one  who  is  merely  reputed  to  be  the  owner,  it 
has  been  held  that  the  legislature  intended  to  retain  the 
lien,  where  the  real  owner  himself  makes  the  contract.^" 

§  140.  Classes,  how  discussed  at  this  time.  For  the  pur- 
pose of  discussion  at  this  time,  as  a  matter  of  convenience 
we  may  consider  these  various  classes  under  two  heads, 
namely :  1.  Work  under  section  eleven  hundred  and  eighty- 
three  ;  and  2.  Work  under  section  eleven  hundred  and 
ninety-one.  The  question  under  which  of  these  sections  the 
work  falls  is  of  great  importance  as  to  the  formalities  of  the 
contract  and  the  necessity  of  giving  notice  of  non-responsi- 
bility by  the  owner,  and  as  to  tlie  rights  and  duties  of  the 
respective  parties,  and  other  particulars.^^ 

§  141.  "  Improvement,"  defined.  Refers  to  object.  The 
word  "  improvement,"  used  in  the  expression  "  building  or 
other  improvement,"  in  the  first  clause  of  section  eleven 
hundred  and  eighty-three  of  the  Code  of  Civil  Procedure, 
quoted  in  the  last  preceding  section,  and  the  word  "  improve- 

•  Kerr's  Cyc.  Code  Civ.  Proc,  §  1183. 

'  Macomber  v.  Big-elow,  126  Cal.  9,  14,  58  Pac.  Rep.  312. 

Washington.  In  Hopkins  v.  Jamieson-Dixon  M.  Co.,  11  Wash.  308, 
89  Pac.  Rep.  815,  a  lien  was  sustained  that  was  partly  for  labor  fur- 
nished, as  distinguished  from  labor  performed  :  Blumauer  v.  Clock,  24 
Wash.  596,  64  Pac.  Rep.  844,  846,  85  Am.  St.  Rep.  966. 

s  Santa  Cruz  R.  P.  Co.  v.  Lyons,  117  Cal.  212,  48  Pac.  Rep.  1097,  59 
Am.  St.  Rep.  174. 

See  §  34,  ante. 

»  Kerr's  Cyc.  Code  Civ.  Proc,  S   1191. 

^0  Santa  Cruz  R.  P.  Co.  v.  Lyons,  133  Cal.  114,   116,  65  Pac.  Rep.  329. 

WashinRton.  Such  lien  given  under  direct  contract  with  owner: 
Young  V.  Borzone,  26  Wash.  4,  66  Pac.  Rep.  135,  138,  421. 

"  See  S§  61  et  seq.,  §§  66,  77,  104,  ante,  and  §§  259  et  seq.,  §§  269 
et  seq.,  §§  286  et  sey.,  §§  315  et  seq.,  post. 


§§  1-12,  1-13  mechanics'  liexs.  118 

ments,"  in  section  eleven  hundred  and  eightj'-eight  of  the 
same  code,  referring  to  claims  upon  two  or  more  "  buildings, 
mining  claims,  or  other  improvements,"  do  not  mean  the 
labor  itself,  or  that  particular  class  of  labor  for  which  the 
claimant  was  employed,  but  the  objects  enumerated  upon 
which  the  labor  has  been  performed/-  and  will  be  discussed 
hereafter/^ 

§  142.  Structures,  and  grading  and  other  work,  under 
§  1191.  Section  eleven  hundred  and  eighty-three  of  the  Code 
of  Civil  Procedure  does  not,  bj^  its  terms,  expressly  relate  to 
contracts  for  building  sidewalks  in  cities,  provided  for  by 
section  eleven  hundred  and  ninety-one,  and  the  court  was 
unwilling  to  construe  section  eleven  hundred  and  eighty- 
three  as  applying  to  any  contract  not  clearly  within  its  letter 
as  well  as  within  its  reason.^*  And  the  same  reasoning  would 
seem  to  be  equally  applicable  to  all  other  work  mentioned  in 
section  eleven  hundred  and  ninety-one,  except,  perhaps,  the 
"  improving  "  of  the  lot,  which  will  be  discussed  hereafter.^® 

§  143.  Structures.  Liens  allowed.  Under  the  first  clause 
of  section  eleven  hundred  and  eighty-three  of  the  Code  of 
Civil  Procedure,  and  statutes  having  a  similar  clause,  besides 
the  common  lien  for  construction,  liens  have  been  allowed  for 
painting,^^  papering,^"  plumbing,^^  and  for  moving  building 

"  Davis  V.  MacDonoug-h,  109  Cal.  547,  551,  42  Pac.  Rep.  450. 

"  See  "  Object  on  Which  Labor  must  be  Performed,"  §§  166  et  seq., 
post. 

"  Kreuzberger  v.  Wingfield,  96  Cal.  :;51,  257,  31  Pac.  Rep.  109. 

^  See  "  Object  on  Which  Labor  must  be  Performed,"  §§  166  et  seq., 
post. 

18  To    contractors:    Sidlinger    v.    Kerkow,     82    Cal.    42,    45,     22    Pac. 
Rep.    932;     Harlan   v.    Stufflebeem,    87    Cal.    508,    510.    25    Pac.    Rep.    686; 
Baird  v.   Peall,   92   Cal.   235,   237,    28  Pac.   Rep.   285    (for  materials  fur 
nished  also);   Marble  L.  Co.  v.  Lordsburg-  Hotel  Co.,   96   Cal.    332,    338, 
31  Pac.  Rep.  164  (materials  furnished). 

To  subcontractors:  Hagman  v.  'Williams,  88  Cal.  146,  147,  25  Pac. 
Rep.  1111  (materials  furnished);  Slight  v.  Patton,  96  Cal.  384,  385,  31 
Pac.  Rep.  248  (materials  furnished).  See  Downing  v.  Graves,  55  Cal. 
544,   545. 

Oreia^on.     Justice  v.  Elu-ert.    28  Oreg.   460,   43  Pac.  Rep.   649. 

1'  To  contractors:  Sidlinger  v.  Kerkow,  82  Cal.  42,  45,  22  Pac.  Ilep. 
932  (materials  furnished);  La  Grill  v.  Mallard,  90  Cal.  373,  376,  27  Pac. 
Rep.   294    (and  for  materials  furnished). 

Montana.     Marsh  v.  Morgan.  18  Mont.  19,  44  Pac.  Rep.  85. 

"  Mclntyre   v.    Trautner,    63    Cal.    429.    • 


119  LABOR    FOR    WHICH    A    LIEN    IS    GIVEN,  §  143 

from  one  place  to  aiiother.^"  It  also  appears  to  tiavebeen 
assumed  that  a  lien  might  be  allowed  for  the  labor_£|j:-Sixil 
engineer.-^  The  contractor's  teamster,  under  a  void  contract, 

Relation  between  gras-fitting-  and  plumbing:  See  Newell  v.  Brill,  2 
Cal.  Aijp.  61,  62,  83  Pac.  Rep.  76. 

Montana.     Gould  v.  Barnard,   14  Mont.  335,   36  Pac.  Rep.   317. 
Orof^on.     But    connecting    bar    with     water-pipes    and    sewer     (the 
work    being   on   mere   trade-fixtures),   at   the   instance   of  tenant,    does 
not  give  lien  upon  the  property:    Patterson  v.  Gallagher,  25  Oreg.  227, 
35  Pac.  Rep.  454,  42  Am.  St.  Rep.  794. 

'»  To  contractors:  Palmer  v.  Lavigne,  104  Cal.  30,  37  Pac.  Rep.  775. 
See  Selden  v.  Meeks,  17  Cal.  128,  132. 

Oregon.  On  the  same  lot  (also  raising  the  building),  it  being  in 
furtherance  of  a  general  plan  for  the  alteration  and  repair  of  tho 
building:  Allen  v.  Elwert,  29  Oreg.  428,  44  Pac.  Rep.  823,  48  Pac.  Rep. 
54    (under  Hill's  Code,   §3669). 

Foreman  of  laborer.s  moving  house  not  allowed  a  lien:  Allen  v. 
Elwert.  29  Oreg.  428.  44  Pac.  Rep.  823,  48  Pac.  Rep.  54. 

Overseer  who  performed  manual  labor  allowed  a  lien:  Willamette 
Falls  Co.  V.  Remick,  1  Oreg.  169  (1851);  and  it  was  intimated  tliat 
sucli  lien  would  be  allowed,  even  if  no  such  labor  had  been  performed: 
Allen  V.  Elwert,  supra. 

=">  Green  v.  Jackson  W.  Co.,  10  Cal.  374.  The  lien  was  not  granted 
in  this  case,  however,  because  suit  was  not  begun  in  time,  under  act 
of  1855,  §  1,  which  differed  from  the  present  statute,  among  other 
things,  in  that  the  labor  was  required  to  be  performed  "for"  the  con- 
struction or  repairing  ot  any  building,  etc.;  whereas,  at  present,  the 
labor  must  be  "upon"  the  building:  See  Palmer  v.  Lavigne,  104  Cal. 
30,  37  Pac.  Rep.  775. 

Colorado.  A  superintendent  of  construction  employed  by  a  con- 
tractor is  entitled  to  a  lien,  under  Mills's  Ann.  Stats.,  Rev.  Sup.,  p.  769, 
for  superintending  the  work  of  construction,  with  power  to  direct 
the  work,  but  is  not  entitled  to  a  lien  for  "  going  to  different  places, 
and  running  around,  punching  up  people  who  had  contracted  to  fur- 
nish material,"  as  it  was  not  superintending  the  work  of  construc- 
tion, or  otherwise  within  the  classes  of  services  enumerated  in  the 
statute  :    Pitschke  v.  Pope,  20  Colo.  App.  328,  78  Pac.  Rep.  1077. 

Montana.  Managing  agent  of  a  railroad  company,  who  had  variou.' 
posiLions  or  duties  in  carrying  on  and  conducting  the  business,  includ- 
ing those  of  managing,  conducting,  and  operating  a  railroad,  in 
doing  which  the  person  ran  as  conductor,  worked  on  the  railroad 
track,  helped  around  the  round-house,  and  was  a  "  general  utility 
man,"  was  held  entitled  to  a  lien  for  liis  services:  Gilchrist  v.  Helena 
H.  S.  &  S.  R.  Co.,  58  Fed.  Rep.  708,  716,  following  Flagstaff  S.  M.  Co. 
V.  Cullins.  104  U.  S.  176,  bk.  26  L.  ed.  704. 

General  agent,  manager,  and  superintendent  of  a  corporation  at 
fixed  monthly  salary,  in  the  erection  of  buildings  and  working  a  mine, 
but  who  performs  no  manual  labor  upon  the  buildings  or  in  the 
mines,  is  not  entitled  to  a  mechanic's  lien  for  the  value  of  his  ser- 
vices: Smallhouse  v.  Kentucky  &  M.  G.  &  S.  M.  Co.,  2  Mont.  Ter.  443, 
distinguished  in  Flagstaff  S.  M.  Co.  v.  Cullins,  104  U.  S.  176,  bk.  26  L. 
ed.    704. 

General  manager  of  trains  in  the  running,  who  at  times  acted  as 
conductor  of  the  cars,  fired  the  engines  and  run  them,  helped  to 
clean  the  engines  and  to  repair  the  track,  in  short,  took  a  hand  in 
any  capacity  in  wliicli  his  services  migiit  be  needed,  was  held  entitled 
to  a  lien  for  his  services:    Gilchrist  v.  Helena  H.  S.  &  S.  R.  Co.,  supra. 


§  144  mechanics'  liens.  120 

was  allowed  a  lien  for  hauling  material  to  be  used  in  the  con- 
struction of  a  building.^^ 

§  144.  "  Construction,  alteration,  addition  to,  or  repair."  ^^ 

It  seems  that  the  labor,  as  distinguished  from  the  material 
furnished,  need  not  be  for  the  "construction,  alteration,  addi- 
tion to,  or  repair  "  of  the  building  or  "  structures  "  enumer- 
ated in  the  first  clause  of  section  eleven  hundred  and  eighty- 
three  of  the  Code  of  Civil  Procedure.  It  is  sufficient  if  the 
labor  be  done  upon  any  of  these  objects,  or  in  a  mining 
claim  or  claims,  or  in  or  upon  any  real  property  worked  as 
a  mine,  whether  technically  coming  within  the  definition  of 
"  construction,  alteration,  addition  to,  or  repair,"  or  not. 
Manifestly,  the  preposition  "  upon,"  in  the  first  clause  of 
section  eleven  hundred  and  eighty-three,  refers  to  and  has 
for  its  object  the  noun  "  building."  ^^ 

New  Mexico.  "  Bodily  toil  in  the  form  of  manual  labor  upon  the 
thing  being  constructed  is  not  in  all  cases  necessary  to  entitle  one 
to  a  lien  "  :    Johnson  v.  McClure,   10  N.  M.  506,   62  Pac.  Rep.  983. 

Dra^ving  plans  and  specifications  by  architect,  and  superintending 
construction:  See  "Architects,"  §§119-129,  ante;  also  7  Am.  &  Eng. 
Ann.   Cas.    617. 

A  general  manager  of  a  mining  company,  who  attended  to  all  its 
business  of  every  kind,  including  mines,  mill,  boarding-house,  ore- 
hauling,  etc.,  and  had  nothing  to  do  with  the  actual  mining  in  the 
mine,  except  in  the  most  general  and  indirect  manner,  having  fore- 
men under  his  direction,  wlio  superintended  the  men  doing  the  actual 
mining,  is  not  entitled  to  a  lien,  under  a  statute  giving  a  lien  to  one 
"who  performs  labor  in  any  mining  claim"  :  Boyle  v.  Mountain  Key 
M.  Co.,  9  N.  M.  237,  50  Pac.  Rep.  347;  Johnson  v.  McClure,  10  N.  M. 
506,  62  Pac.  Rep.  983. 

Utali.  Overseer  and  foreman  of  a  gang  of  men  working  on  a 
mine,  who  also  performs  manual  labor  on  the  mine,  is  entitled  to  a 
lien  for  his  services,  under  the  Utah  statute:  Flagstaff  S.  M.  Co.  v. 
Cullins,  104  U.  S.  176,  bk.  26  L.  ed.   704. 

25  McClain  v.  Hutton,  131  Cal.  132,  138,  63  Pac.  Rep.  182,  623,  61  Id. 
273. 

See  also  §  46,  ante. 

-  Kerr's  Cyc.  Code  Civ,  Proc,  §  1183. 

=»  Palmer  v.  Lavigne,  104  Cal.  30,  31,  37  Pac.  Rep.  775.  See  Williams 
V.  Santa  Clara  M.  Assoc,  66  Cal.  193,  197,  5  Pac.  Rep.  85,  4  West 
Coast  Rep.  616. 

In  Palmer  v.  LaTlgne,  supra,  it  was  said,  in  arguendo,  that  the 
"  labor  for  which  the  lien  is  given  must  be  performed  in  the  '  con- 
struction, alteration,  addition  to,  or  repair '  of  these  objects,  or  one 
of  them."  The  question  was  not  involved,  however,  and  the  Williams 
case  was  not  noticed.  But  see  Davis  v.  MacDonougli,  109  Cal.  547,  551, 
42   Pac.   Rep.   450. 

\Vhere  a  contractor  performed  labor  upon  a  house,  by  moving  it 
from  one  place  to  another,  it  was  held  that  he  was  entitled  to  a  lien 
therefor:   Palmer  v.   Lavigne,   104   Cal.    30;   32,   37   Pac.   Rep.    775.     This 


121  LABOR   FOR   WHICH   A   LIEN   IS    GIVEN.        §§  145-147 

Counters  and  partitions  added  to  a  building  as  fixtures 
may  amount  to  a  "  repair  "  thereof,  and  support  a  lien.-* 

§  145.  Same.  Importance  of  determination.  The  deter- 
mination of  the  question  whether  the  work  is  the  "  construc- 
tion, alteration,  addition  to,  or  repair  "  of  a  structure,  under 
section  eleven  hundred  and  eighty-three  of  the  Code  of  Civil 
Procedure,  has  particular  reference  to  the  lien  for  materials. 

§  146.  Character  of  alteration.  The  "  alteration  "  of  a 
building  may  not  necessarily  be  as  to  its  framework,  or  a 
change  in  its  form  or  structure.  If  the  "  alteration  "  is  such 
as  to  adapt  it  to  other  than  its  original  uses,  it  is  sufficient  to 
entitle  to  a  lien.  Thus  where  machinery  was  furnished  to  be 
used,  and  was  used,  as  a  part  of  a  building,  to  convert  it  into 
a  sugar-refinery,  a  lien  was  given,  on  the  theory  that  the 
work  done  had  been  the  "  construction  or  repairing  "  of  the 
building.^^ 

§  147.  Distinction  between  "  alteration  "  and  "  repair." 
There  is  a  distinction  between  the  "  alteration  "  and  "  repair  "" 
of  an  old  building  and  the  "  erection  "  of  a  new  one.  The 
distinction  would  seem  to  depend  upon  the  facts  of  the  par- 
ticular case  and  the  degree  of  change  in  the  old  structure. 
Thus,  raising  up,  moving  back,  and  repairing  two  houses, 
and  furnishing  materials  therefor,  do  not  constitute  the 
"  erection  "  of  a  building.^® 

case,  however,  does  not  decide  that  such  "moving"  comes  within  the 
definition  of  "construction,  aUeration,  addition  to,  or  repair";  but 
that  it  is  the  performance  of  labor  upon  a  building:  See  Selden  v. 
Meelts,   17   Cal.   128,   132. 

Colorado.  The  nature  of  the  labor  must  fall  within  the  purview 
of  the  act  (construction,  extension,  enlargement,  alteration,  or  repair 
of  a  canal)  :  Arkansas  River  L.  R.  &  C.  Co.  v.  Nelson,  4  Colo.  App. 
438,  36  Pac.  Rep.  307    (1883). 

^  Madary  v.  Smartt,  1  Cal.  App.  498.  500,  82  Pac.  Rep.  561. 

«  Donahue   v.    Cromartie,    21   Cal.    80,    86. 

See  "  Contract  for  Sale,  or  for  Labor,"  §  83,  ante. 

Act  of  April  19,  1S5«,  §  1,  under  which  this  case  was  decided,  gave 
material-men  a  lien  for  materials  furnished  "  for  the  construction  or 
repairing  of  any  building,  wharf,  or  other  superstructure":  See  Goss 
V.  Helbing,   77   Cal.   190,   191. 

=»  Eaton  V.  Malatesta,  92  Cal.  75,  28  Pac.  Rep.  54.  See  Ward  v. 
Crane,  118  Cal.  676,  678,  50  Pac.  Rep.  839. 

See  also  §  93.  ante. 

Oreson.     See  Allen  v.  Elwert,  29  Oreg.  428,  442. 


§§  148,  149  mechanics'  liens.  122 

§  148.  Same.  Alteration.  Erection.  Ou  the  other  hand, 
where  the  southeast  and  west  sides  of  an  old  house  are  torn 
away  and  an  addition  ten  feet  wide  put  up  on  the  south  side, 
and  the  roof  of  the  old  part  was  removed  and  a  new  one 
added  over  the  old  part,  and  the  addition  and  all  the  parti- 
tions were  new,  although  the  flooring  was  not  taken  up,  and 
the  building  was  enlarged  and  raised  up  by  putting  in  under- 
pinning, it  being  an  old  building  remodeled,  it  was  held  that 
the  work  was  for  the  "  erection  "  of  the  building.-' 

§  149.  Work  in  mines  and  mining  claims.-^  Second 
clause.  There  seems  to  be  fewer  limitations  upon  the  char- 
acter of  the  work  done  under  the  second  clause  of  section 
eleven  hundred  and  eighty-three  of  the  Code  of  Civil  Proce- 
dure, than  under  the  first  clause,  so  long  as  it  is  labor  per- 
formed "  in"  a  mining  claim,^^  or  "  in  or  upon  "  any  real 

"  Ward  V.  Crane,  118  Cal.  676,  677,  50  Pac.  Rep.  839. 

=«  Idaho.  Labor  done  "  in  or  upon  "  a  mining  claim  :  See  Lock- 
hart  V.  Rollins,   2  Idaho  540,   21   Pac.   Rep.   413,   415. 

29  See  notes  to  §§  144  et  seq.,  ante,  and  §§  161  et  seq.,  post,  and  "  Ob- 
ject on  W' hlch  Labor  must  be  Performed,"   §§  166  et  seq.,  post. 

How  far  labor  may  be  performed  "in"  a  mining:  claim,  for  which 
in  no  event  a  lien  is  given,  within  the  principle  of  McCormlck  v.  Los 
Angeles  City  W.  Co.,  40  Cal.  185,  187,  decided  under  a  statute  of  dif- 
ferent phraseology,   has  not  been  determined  in  California. 

Cooking  in  a  mining  claim,  as  to  lien  for,  see  §  162,  post. 

Arizona.  Definitions  of  "  roasting,"  "  melting,"  and  "  smelting  "  of 
ores  :    See  United  States  v.  United  Verde  C.   Co.    (Ariz.),   71   Pac.   Rep. 

954. 

Colorado.  But  see  Brainard  v.  McKenzie,  4  Colo.  251  (1872),  where 
no  lien  was  allowed  for  hauling  ores  from  the  mine  to  the  mill,  as  it 
was  not  labor  "in  or  upon"  the  mine. 

Xevada.  But  a  lien  was  allowed  for  such  hauling  as  is  men- 
tioned in  the  Colorado  note,  supra:  In  re  Hope  Mining  Co.,  1  Sawy. 
710,   12  Fed.  Cas.,  p.  487.     See  Gould  v.  Wise.   18  Nev.   253,   3  Pac.  Rep. 

30. 

Hio   lien   wa-s   allowed  laborers   on   mines   prior   to   the   act   of    1867: 

Hunter  v.  Savage  Consol.  S.  M.  Co.,  4  Nev.  153. 

Oregon.  See  act  to  secure  liens  for  laborers  in  minmg  claims, 
approved  February  20,  1891   (2  HiU's  Ann.  Laws,  p.  1906). 

The  term  "any  such  mine,"  in  the  third  clause  of  §1  of  this  act, 
refers  to  the  mines  mentioned  in  the  sections  preceding.  "That  is: 
1  To  a  mine  that  is  being  operated  for  the  purpose  of  obtaining 
metals  or  minerals,  — or  mining  proper;  2.  To  labor  or  materials 
furnished  in  searching  for  metals  or  minerals  in  any  designated 
tract  that  is  supposed  to  contain  them,—  or  prospecting.  Mining  and 
prospecting  are  generic  terms,  which  include  the  whole  mode  of 
obtaining  metals  and  minerals,  and  the  lien  is  given  to  every  person 
who  shall  do  work  or  furnish  materials,  either  in  mining  or  pros- 
lTectin%."  etc.:  Williams  v.  Toledo  C.  Co..  25  Oreg.  426,  36  Pac.  Rep. 
159,    42    Am.    St.    Rep.    799. 


123  LABOR    FOR    WHICH    A    LIEN    IS    GIVES!.  §  150 

property  worked  as  a  mine,^°  in  the  course  of  the  actual  work 
of  mining  or  development  in  the  mine."^ 

§  150.  Same.  Liens  allowed.  Liens  have  been  allowed 
for  repairing  machinery  and  tools  on  a  mine ;  ^-  for  breaking 
down  and  tearing  away  from  the  face  of  the  drifts  in  a  mine 
the  quartz  and  substance  of  the  mine ;  ^^  for  work  of  super- 
intending a  mine  when  accompanied  by  manual  labor ;  ^*  for 

Lien  for  constructing  wagon-road.  No  lien  is  provided  under  this 
act  for  constructing-  a  wag-on-road,  which  is  not  "an  incline  or  exca- 
vation":    Williams   v.    Toledo    C.    Co.,    supra. 

™  This  clause  was  added  by  the  amendment  of  1903,  which  evi- 
dently carries  out  but  imperfectly  the  intention  of  the  framers,  and 
rather   adds   confusion   to    what   already    was   uncertain. 

31  Williams  v.  Hawley,   144  Cal.   97.   103,   77  Pac.  Rep.   762. 

"^  To  laborer:  Malone  v.  Big  Flat  G.  M.  Co.,  76  Cal.  578,  580,  18 
Pac.   Rep.   772. 

Itlalio.  An  amalg-amator,  who  keeps  the  machinery  in  running- 
order,  looks  after  the  concentrates,  cleans  amalgam,  and  generally 
looks  after  the  machinery,  has  been  held  entitled  to  a  lien:  Thompson 
V.  Wise  Boy  M.  &  M.  Co.,  9  Idaho  363,  74  Pac.  Rep.  958  (a  well- 
consiuered  opinion,  reviewing  authorities  from  other  states).  And 
see  Salt  Lake  H.  Co.  v.  Chainman  M.  &  E.  Co.,  137  Fed.  Rep.  632. 

New  Mexico.  "Repair"  of  machinery:  See  Ripley  v.  Cochiti  G.  M. 
Co.   (N.  M.),   76  Pac.  Rep.   285. 

3»  Chappius  V.  Blankman,  128  Cal.  362,  365,  60  Pac.  Rep.  925.  See 
Castagnetto  v.  Coppertown  M.  &  S.  Co.,  146  Cal.  329,  333,  SO  Pac. 
Rep.   74. 

-^  Palmer  v.  Uncas  M.  Co.,  70  Cal.  614,  616,  11  Pac.  Rep.  666. 
Although  the  claimant  was  called  a  "  superintendent,"  the  service 
for  which  his  claim  of  lien  was  filed  was  manual  labor  done  by  him 
in  and  upon  the  property.  Whether  a  mining  superintenaent  who 
does  no  manual  labor  is,  under  the  statute,  entitled  to  a  lien  was  not 
decided. 

('ol:>railo.  Rara  Avis  G.  oi  S.  Co.  v.  Bouscher,  9  Colo.  385,  12  Pac. 
Rep.  433   (but  not  for  labor  as  disbursing  agent  and  accountant). 

Superintending  construction,  lien  allowed  for:  Fischer  v.  Hanna, 
8  Colo.  App.  471,  47  I'ac.  Rep.  303. 

Profei^sional  services  on  a  mine  were  required  to  be  done  for  the 
working,  preservation,  or  development  of  the  property,  under  act  of 
1893,  p.  315  (3  Mills's  Ann.  Stats.,  §§2867  et  seq.):  Lindemann  v. 
Belden  Consol.  M.  &  M.  Co.,  16  Colo.  App.  342,  65  Pac.  Rep.  403. 

(«ei>loKist  and  mining  expert,  who  contracted  to  explore  and  exam- 
ine certain  mines  and  surrounding  country  with  reference  to  their 
mineral  and  geological  character,  to  enable  the  owner  to  sell  the 
property,  was  held  not  entitled  to  a  lien,  under  lien  law  of  1893,  §  1, 
p.  315  (3  Mills's  Ann.  Stats.,  §  2867),  allowing  a  lien  to  engineers  who 
have  rendered  proiessional  services,  §  8  allowing  such  lien  to  all 
persons  who  did  work  for  the  working  of  development  of  any  min- 
ing claim,  or  for  such  services  in  searching  for  metals  or  minerals, 
there  being  nothing  upon  the  record  nor  upon  the  ground  to  indicate 
the  work  for  which  such  latent  lien  might  be  claimed.  A  contrary 
ruling  would  be  destructive  of  the  business  of  selling  mines: 
Lindemann  v.  Belden  Consol.  M.  &  M.  Co.,  16  Colo.  App.  34::,  65 
Pac.   Rep.   403. 


§  150  mechanics'  liens.  124 

grading  a  flume-bed,  surface-ditches,  and  tunnel-approaches, 
and  timbering  and  lining  the  same  with  masonry.^'^  Liens 
are  alloAved  to  laborers  in  extracting  ores  from  mines,^"  as 
well  as  for  work  done  for  development  to  discover  new  or 
better  ore,  or  to  facilitate  the  extraction  of  ore,  discovered 
or  undiscovered,  or  for  work  which  served  to  accomplish  all 
these  purposes.^^ 

Custodian  to  see  that  mining  property  is  not  destroyed  is  prob- 
ably not  "  work,"  within  the  lien  statute,  even  under  the  amend- 
ment of  1889,  as  mining  property  is  not  preserved  by  being  watched, 
and  the  mere  custodian  of  machinery  on  a  mine  might  possibly  have 
a  lien  on  the  macliinery,  but  probably  not  on  the  realty  (dictum): 
Griffin  v.   Seymour,   15   Colo.   App.   487,   63  Pac.   Rep.    809. 

As  to  custodian  of  mine  not  being  entitled  to  mechanic's  lien  for 
services,  see  Kerr's  Cye.  Code  Civ.  Proe.,  §  143,  note  pars.  148,  149. 
See  also  note  44,  this  chapter. 

Idalio.  Professional  or  supervisory  employment  on  mine:  See 
Lockhart   v.   Rollins,    2    Idaho    540,    21    Pac.    Rep.    413,    415. 

Montana.  Superintendent  of  mining  corporation  not  allowed  a 
lien:  Smallhouse  v.  Kentucky  etc.  Co.,  2  Mont.  443. 

Nevada.  Foreman  who  keeps  time  and  gives  orders  for  pay  of 
men  is  entitled  to  a  lien,  as  such  work  has  a  direct  tendency  to 
develop  the  property:    Capron  v.  Strout,   11  Nev.  304. 

New  Mexico.  General  manager,  superintendent,  and  mining  engi- 
neer, who  also  received  and  sliipped  the  bullion  and  concentrates, 
kept  books,  assisted  in  cleaning  up,  and  retorted  the  gold,  etc.,  did 
not  "perform  labor"  in  the  mine,  entitling  him  to  a  lien,  his  salary  of 
three  thousand  dollars  per  annum  being  considered  excessive  for 
merely  overseeing  a  few  men  in  a  small  mine:  Boyle  v.  Mountain 
Key  M.   Co.,   9   N.   M.   237,   50  Pac.   Rep.   347. 

"  Mining  superintendent,"  tlie  superintendent  of  a  mining  com- 
pany, distinguished  from  tlie  "superintendent  of  a  mine"  only:  Boyle 
v.  Mountain  Key  M.  Co.,  9  N.  M.  237,  50  Pac.  Rep.  347,  349,  351. 

Utah.  Superintendent  of  labor  in  a  mine  was  allowed  a  lien: 
Cullins  V.  Flagstaff  S.  M.  Co.,  2  Utah  219,  following  Nevada  case, 
supra,  and  distinguishing  Montana  case,  supra,  as  relating  to  tlie 
claim  of  "  a  general  manager  of  a  corporation  in  all  its  business." 
This  case  was  affirmed  in  Flagstaff  S.  M.  Co.  v.  Cullins,  104  U.  S. 
176,  bk.  26  Li.  ed.  704,  and  the  other  cases  here  cited  were  reviewed, 
tlie  court  alluding  to  the  presence  of  bodily  toil,  and  saying,  "It 
is  somewhat  difficult  to  draw  the  line  between  the  kind  of  work 
and  labor  which  is  entitled  to  a  lien,  and  that  wliich  is  merely  pro- 
fessional or  supervisory  employment  not  fairly  to  be  included  in 
these    terms." 

Washington.  See  Cadwell  v.  Brackett,  2  Wash.  321,  26  Pac.  Rep. 
219. 

^■'  Giant  P.  Co.  v.  San  Diego  F.  Co.,  88  Cal.  20,  22,  25  Pac.  Rep.  976. 

36  Higgins  V.  Carlotta  G.  M.  Co.,  148  Cal.  700,  702,  84  Pac.  Rep. 
758,  113  Am.  St.  Rep.  344. 

"  Higgins  V.  Carlotta  G.  M.  Co.,  148  Cal.  700,-  702,  84  Pac.  Rep. 
758,   113  Am.  St.  Rep.   344. 

Lien  allowed  for  sharpening  picks,  etc.,  and  upon  fixtures  in  mine: 
Malnne  v.  Big  Flat  G.  M-  Co.,  76  Cal.  578,  583.  18  Pac.  Rep.  772. 

See  ■■  Fixtures,"  ^  95,  ante,  and  sS  185  et  seq.,  post. 


125  LABOR    FOR    WHICH    A    LIEN    IS    GIVEN.  §  151 

Construction,  alteration,  or  repair  of  mine.  Strictly 
speaking,  a  "  mining  claim  "  cannot  be  "  constructed,  altered, 
or  repaired,"  ^*  although  it  has  been  more  recently  held  that 
breaking  down  and  tearing  away  from  the  face  of  the  drifts 
in  a  mine  the  quartz  and  substance  of  the  mine  is  work  per- 
formed in  the  "  construction,  alteration,  and  repair  "  of  the 
mine.^** 

§  151.  Same.  Notice  of  non-responsibility.  Tunnel.  Be- 
fore   the     amendment    of    March    18,  1907,  section    eleven 

Work  as  a  miner  in  the  development,  improvement,  protection,  and 
preservation  of  a  mine:  See  Reese  v.  Bald  Mt.  Consol.  G.  M.  Co.,  133 
Cal.    285,    289,   65   Pac.   Rep.   578. 

Idubu.  Lien  allowed  for  milling  ore  in  mill  on  mine:  Thompson 
V.  Wise  Boy  M.  &  M.  Co.,   9   Idaho   363,   74  Pac.  Rep.   958. 

3*  Helm  V.  Chapman,  66  Cal.  291,  292,  5  Pac.  Rep.  352;  Williams  v. 
Santa  Clara  M.  Assoc,  66  Cal.  193,  197;  Williams  v.  Mountaineer  G.  M. 
Co.,  102  Cal.  134,  141,  34  Pac.  Rep.  702,  36  Id.  388. 

See  "Nature  of  Property  for  Which  Material  must  be  Furnished," 
{  98,  ante. 

M'hen  the  cases  of  Helm  v.  Chapman  and  Williams  v.  Santa  Clara 
M.  Assoc,  supra,  were  decided,  §  1183  of  the  Code  of  Civil  Procedure 
provided,  "  Mechanics  .  .  .  performing  labor  upon  or  furnishing 
material  to  be  used  in  the  construction,  alteration,  or  repair  of  any 
mining  claim,  building,  wharf,  .  .  .  shall  have  a  lien  upon  the  prop- 
erty upon  which  they  have  bestowed  labor,"  etc.  In  the  former  case 
it  was  said:  "The  intention  of  the  law-makers  seems  to  have  been 
to  give  a  lien  upon  the  whole  claim  for  labor  performed  on,  and  for 
materials  furnished  for  and  used  in,  any  structure,  or  on  or  in  the 
alteration  or  repair  of  any  structure,  or  on  or  in  a  mining  claim." 
Shortly  after  this  decision,  this  section  was  amended  by  striking  out 
from  the  list  of  "  structures,"  in  the  first  clause,  the  words  "  mining 
claim,"  and  a  separate  clause,  herein  generally  designated  as  "the 
second  clause  of  §1183,"  was  inserted,  providing  that  "any  person 
who  performs  labor  in  any  mining  claim  or  claims  "  has  a  lien  upon 
the  same,  and  the  works  owned  and  used  by  the  owners  for  reducing 
the  ores  from  such  mining  claim  or  claims,"  etc.  The  words  quoted 
were  in  the  section  before  1880,  and  were  stricken  out  at  tliat 
time,  labor  upon  any  mining  claim  being  also  provided  for  in  the 
first  clause. 

In  Ayers  v.  Green  Gold  Mining  Co.,  116  Cal.  333,  48  Pac.  Rep.  221, 
an  attempt  was  made  to  foreclose  a  lien  for  the  work  of  cleaning  out 
a  tunnel,  but  none  of  the  questions  discussed  above  were  noticed. 
Under  the  first  clause  of  the  statute,  a  miner  is  given  a  lien  upon 
property  for  work  on  "  structiires."  Tlie  extent  of  this  property  is 
nun-e  particularly  defined  in  §  1185  of  the  Code  of  Civil  Procedure. 
Under  the  second  clause,  "any  person  who  performs  labor  in  any 
mining  claim  or  claims,  or  in  or  upon  real  property  worked  as  a 
mine,"  whether  technically  a  "  miner  "  or  not,  "  has  a  lien  upon  the 
same,  ana  the  works  owned  and  used  by  the  owners  for  reducing 
the  ores  from  such  mining  claim  or  claims,  or  real  property  so 
worked   as   a   mine." 

•»  Chappius  V.  Blankman,   128  Cal.   362,   365.   60  Pac.   Rep.   925. 


§  152  mechanics'  liens.  126 

hundred  and  ninety-two  of  the  Code  of  Civil  Procedure 
provided  for  notice  of  non-responsibility  by  the  owner 
"  within  three  days  after  he  shall  have  obtained  knowl- 
edge of  the  construction,  alteration,  or  repair  "  of  "  every 
building  or  other  improvement  mentioned  in  section 
eleven  hundred  and  eighty-three,"  "  or  the  intended  con- 
struction, alteration,  or  repair."  Under  this  section,  as 
it  then  stood,  drifting  in  a  tunnel  was  not  the  "  construc- 
tion, alteration,  or  repair "  of  any  such  "  building  or 
other  improvement,"  and  such  work  differs  from  running 
a  tunnel,  the  court  saying,  "  It  is  equitable  to  require  the 
owner,  who  sees  going  forward  an  unauthorized  building  or 
other  beneficial  improvement  upon  his  property,  to  give 
notice  that  he  will  not  be  responsible  therefor ;  but  this  con- 
sideration fails  when  the  work  consists  in  a  subtractive  pro- 
cess —  the  removal  of  the  very  corpus  of  the  property."  *'^ 
In  view  of  the  amendment  to  the  section,  the  decision  loses 
force. 

§  152.  Same.  Drifting.  But,  while,  under  the  peculiar 
language  of  section  eleven  hundred  and  ninety-two  of  the 
Code  of  Civil  Procedure,  as  it  stood  before  the  amendment 
of  1907,  "  drifting  in  a  tunnel  "  might  not  have  been  the 
"  construction,  alteration,  or  repair  of  a  building  or  otlier 
improvement  "  for  the  purpose  of  requiring  notice  of  non- 
responsibility  from  the  owner  to  prevent  his  liability  from 
attaching  for  the  work  when  ordered  by  a  person  not  duly 
authorized,  yet  a  lien  was  given  "  in  a  mining  claim,  or  in 
or  upon  any  real  property  worked  as  a  mine,"  under  the 
express  amendment  of  section  eleven  hundred  and  eighty- 
three  in  1903,  whether  the  work  be  in  the  development 
thereof  or  in  working  thereon  by  subtractive  process;  and 
it  had  been  previously  held  that  for  work  performed   in 

*"  Jurgensen  v.  DiUer,  114  Cal.  491.  493,  46  Pac.  Rep.  610,  55  Am. 
St.  Rep.  83. 

See  '•  Estoppel,"  S  469,  post.  But  see  "  Notice  of  Non-responsibility," 
§§  473   et   seq.,   post. 

'  In  Williams  v.  Mountaineer  G.  M.  Co.,  102  Cal.  134,  139,  34  Pac.  Rep. 
702,  36  Id.  388,  it  was  said:  "The  labor  cannot  generally  be  said  to 
have  contributed  to  the  creation  of  the  property,  or  added  to  its  value: 
on  tlie  contrary,  it  may  diminish  its  value  —  perhaps  render  it 
valueless." 


*! 


127  LABOR    FOR    WHICH    A    LIEN    IS    GIVEN.        §§  153-155 

quarrying  and  extracting  quartz  and  ores  in  stopes  and 
levels,  for  the  purpose  of  taking  out  rock  to  be  crushed,  or  in 
any  pit,  shaft,  or  gallery  of  a  mine,  one  is  entitled  to  a 
lien." 

§  153.  Same.  Running  tunnel.  The  work  of  construct- 
ing or  running  a  tunnel  in  a  mine  is  work  done  upon 
the  mining  claim  in  the  development  thereof,  within  the 
mechanic's-lien  law.  Hence  where  a  mining  company  con- 
tracted for  the  running  or  construction  of  a  tunnel  in  their 
mining  claim  for  a  stipulated  sum,  and  the  contractor  failed 
to  pay  the  laborers  employed  in  running  or  constructing 
such  tunnel,  they  were  held  to  be  entitled  to  a  mechanic's 
lien  on  the  property  for  the  amount  due  them  as  wages  for 
the  work.*^ 

§  154.  Same.  Shaft.  Mining  instrumentalities.  The 
true  signification  of  such  expressions  as  "  shafts,"  "  tunnels," 
"  levels,"  "  chutes,"  "  stopes,"  "  uprises,"  "  crosscuts,"  "  in- 
clines," etc.,  when  applied  to  mines,  is  instrumentalities 
whereby  and  through  which  such  mines  are  opened,  de- 
veloped, prospected,  improved,  and  worked.  He  who  engages 
in  the  construction  of  those  prime  requisites  upon  or  in  a 
mine  is  engaged  in  mining,  equally  with  one  who  extracts 
gravel  or  ore  therefrom,  and  is  entitled  to  a  lien  therefor." 

§  155.  Same.  Watchman  of  idle  mine.  A  lien  was  refused 
to  a  watchman  of  a  mine  while  the  mine  was  lying  idle.'** 

*'  Helm  V.  Chapman,  66  Cal.  291,  292,  5  Pac.  Rep.  352,  5  West  Coa.st 
Rep.  127. 

"  Parker  v.  Savage  Placer  M.  Co.,  61  Cal.  348.  At  the  time  of  this 
decision.  §  1183  of  the  Code  of  Civil  Procedure  provided  that 
"  mechanics  .  .  .  performing  labor  upon  or  furnishing'  material  to 
be  used  in  the  construction,  alteration,  or  repair  of  anj'  mining 
claim,  building,  .  .  .  tunnel,  ...  or  other  structure  shall  have  a 
lien  upon  the  property,"  etc.  It  is  also  to  be  noticed  that  "  tunnels  " 
were  specifically  enumerated  in  the  section;  and  whether  the  lien  was 
allowed  as  work  on  a  "  tunnel  "  or  in  a  "  mining  claim "  does  not 
Clearly  appear  in  the  decision. 

.See   §  179,   post.' 

*'  Hines  v.  Miller,  122  Cal.  517,  55  Pac.  Rep.  401. 
ee  Martin's  Miuiu^  Iia»v,  passim. 
Williams  v.  Hawley.   144  Cal.  97,   103,  77  Pac.  Rep.  762. 

See  also  note   34,  ante,  this  chapter. 


§§  156-158  mechanics'  liens.  128 

§  156.  Grading,  etc.,  under  §  1191.^ '  Section  eleven  hun- 
dred and  ninety-one  of  the  Code  of  Civil  Procedure  applies 
to  grading  and  other  improvements  of  a  lot,  done  inde- 
pendently of  and  not  as  a  necessary  part  of  the  construction 
of  a  building,*®  in  an  incorporated  city  or  town,*'  and  not 
outside  of  it.** 

§  157.  Same.  Work  not  enforceable  under  this  section. 
The  lien  of  excavators  who  perform  labor  and  furnish  mate- 
rials for  the  proper  grading  of  a  lot  preparatory  and  neces- 
sary to  the  construction  of  a  building,  under  a  void  original 
contract,  which  included  such  preparatory-  work,  is  enforce- 
able, under  section  eleven  hundred  and  eighty-three,  and  not 
under  section  eleven  hundred  and  ninety-one,  of  the  Code  of 
Civil  Procedure. *°  It  is  thus  fairly  deducible  that  where  the 
w'ork  would  otherwise  fall  within  section  eleven  hundred 
and  ninety-one,  if  it  is  preparatory  and  necessary  to  any 
work  falling  within  section  eleven  hundred  and  eighty-three, 
it  becomes  a  part  of  the  latter  work,  and  is  generally  gov- 
erned by  the  same  rules  as  such  work. 

§  158.  Same.  Meaning  of  "  improves,"  "  improvement." 
The  word  "  improves,"  as  used  in  section  eleven  hundred  and 
ninety-one,  is  different  in  meaning  from  that  used  in  section 

Idaho.     A   watchman   in   charge    of   mining   property,    consisting   of 
personal  and  real  property,  has  a  lien  on  the  personal  property  while 
in  possession  thereof,  for  his  services:    Idaho  Comstock  M.  &  M.  Co 
V.  Lundstrum,   9  Idaho   257,   74  Pac.   Rep.   975    (under   Rev.   Stats.   1887. 
S  3445). 

Foreman  and  -natcUnian  of  a  mine  held  entitled  to  a  lien,  under 
Laws  1893,  p.  49,  §  1:  Idaho  M.  &  M.  Co.  v.  Davis,  123  Fed.  Rep.  396, 
59  C.  C.  A.  200. 

*^  Section  9  of  the  act  of  1868  (Stats.  1867-68,  -p.  589)  gave  a  lien 
similar  to  that  provided  for  in  §  1191  of  the  Code  of  Civil  Procedure, 
and  the  section  was  carried  into  the  Code  of  Civil  Procedure  upon  its 
adoption  in  1872,  and  became  §  1184.  It  remained  unchanged  until 
1885  (Stats.  1885,  p.  143),  when  it  became  §  1191  of  the  Code  of  Civil 
Procedure,  and  was  amended  by  adding  the  words  "  or  sidewalk  "  after 
the  word  "street."  By  the  act  of  1887,  four  sections  of  the  code, 
relating  to  mechanics'  liens,  including  §  1191,  were  amended,  leaving 
the  other  sections  untouched:  Santa  Cruz  R.  P.  Co.  v.  Lyons,  133 
Cal.  114,  117,  65  Pac.  Rep.  329. 

<«  Macomber  v.  Bigelow,  126  Cal.  9,  13,  58  Pac.  Rep.  312. 

"  See  "Object  on  Which  Labor  must  be  Performed,"  §§  166  et  seq., 
post. 

^»  Durrell  v.  Dooner,"  119  Cal.  411,  51  Pac.  Rep.  628. 

*»  Macomber  v.  Bigelow,  126  Cal.  9,  13,  58  Pac.  Rep.  312. 


129  LABOR   FOR   WHICH   A   LIEN   IS    GIVEX.  §  159 

eleven  hundred  and  eighty-three,  discussed  above.^°  It 
refers  to  some  "  imi^rovement  of  "  the  lot  upon  which  the 
lien  is  given,  rather  than  to  the  "  improvements  upon  "  the 
lot,  referred  to  in  section  eleven  hundred  and  eighty-eight, 
relating  to  a  lien  upon  two  or  more  buildings;  or  in  other 
words,  it  refers  to  the  work,  rather  than  to  the  object  upon 
M'hich  the  work  is  done.  Section  eleven  hundred  and  ninety- 
one  governs  the  construction  of  sidewalks.^^ 

§  159.  Same.  Relation  to  work  on  structures.  Under  the 
decision  last  cited,  it  seems  that  section  eleven  hundred  and 
eighty-three  has  no  application  generally  to  the  work  spe- 
cially mentioned  in  section  eleven  hundred  and  ninety-one, 
which  gives  a  lien  to  a  person  who  "  grades  ...  or  other- 
wise improves  any  lot  in  any  incorporated  city,"  etc. 
A  person  who  erects  a  "  structure  "  on  a  lot  in  an  incorpo- 
rated city  may  have  a  lien  which  would  fall  within  the  first 
clause  of  section  eleven  hundred  and  eighty-three,  and  he 
would,  unquestionably,  in  the  usual  acceptation  of  the  term, 
improve  the  lot,  and  make  improvements  in  connection 
therewith.^^ 

«»  See  §  141,  ante,  and  §  171,  post. 

"  Kreuzberger  v.   W^ingfield,   96   Cal.   251,   257,   31   Pac.   Rep.    109. 

Washington.  The  grading  of  a  street  in  front  of  property  is  an 
"improvement"  of  the  property:  Young  v.  Borzone,  26  Wash.  4,  66 
Pac.  Rep.   135,   138,   421. 

•■■2  Warren  v.  Hopkins,   110  Cal.   506,  42   Pac.  Rep.  986. 

"Therewith."  It  is  uncertain  whether  the  word  "  therewitli,"  as 
used  in  tliis  connection,  alludes  to  the  lot,  sidewalk,  rooms  under  a 
sidewalk,  street,  areas,  vaults,  or  cellars,  or  all  of  these  objects.  It 
is  possible  that  §1191  alludes  to  some  kind  of  "improving"  of  a 
lot,  in  incorporated  cities,  of  a  character  not  referred  to  in  §  1183. 
The  "improvements,"  under  the  first  clause  of  §1183,  are  classified 
as  "  structures."  The  nature  of  the  work  enumerated  in  §  1191  is 
of  a  different  general  character  from  that  mentioned  in  §  1183,  and 
the  expression,  "makes  any  improvement  in  connection  therewith," 
would  probably  be  construed  as  the  doing  of  any  work  of  the  same 
general  character  as  that  specifically  enumerated  in  §  1191  (under 
the  principle  de  sociis),  and  not  provided  for  in  §  1183.  But  see  SS  156, 
157,  ante,  and  McClain  v.  Hutton,  131  Cal.  132,  136,  63  Pac.  Rep.  1S2,  61 
Id.  273,  and  see  "  Object  on  Which  Labor  must  be  Performed,"  §§  166 
et  seq.,  post. 

Wa.*)hingtuu.  The  lien  for  grading  the  street  in  front  of  a  lot  is 
given,  and  attaches  in  the  same  manner  and  to  the  same  extent  as 
where  the  improvement  is  placed  directly  on  the  lot,  instead  of 
appurtenant  to  it:  Young  v.  Borzone,  26  Wash.  4,  66  Pac.  Rep.  135, 
138,  421. 

Mech.  Liens  —  9 


§§  160-162  mechanics'  liens.  130 

§  160.  Same.  Liens  allowed.  Under  section  eleven  hun- 
dred and  ninety-one  of  the  Code  of  Civil  Procedure,  liens 
have  been  allowed  for  street  improvements  in  front  of  the 
property,^^  for  grading  the  lot/'^  and  for  constructing  bulk- 
heads,^°  sidewalks,""  curbing,  and  cement  steps  on  the  side- 
walk leading  up  to  the  pathways."'' 

§  161.  Labor  for  which  lien  is  not  given  in  any  event. 
The  work  must  not  be  too  remote  from  the  ultimate  result 
contemplated,"'^^  even  though  without  such  work  the  ultimate 
result  could  not  be  accomplished. 

§  162.  Same.  Preliminary  work.  Thus  no  lien  was 
allowed  for  "  preliminary  work,"  consisting  of  the  building 
of  sawmills,  railroads,  and  roads,  including  a  plant,  timber- 

^=  Beatty  v.  Mills,  113  Cal.  312,  45  Pac.  Rep.  468.  See  Santa  Cruz 
R.  P.  Co.  V.  Lyons,  117  Cal.  212,  48  Pac.  Rep.  1097,  59  Am.  St.  Rep.  174, 
and  Santa  Barbara  v.  Huse,  51  Cal.  217  (improvements  under  a  city 
ordinance).  See  also  De  Haven  v.  McAuley,  138  Cal.  573.  576,  72  Pac. 
Rep.     152. 

The  permission  of  the  superintendent  of  streets,  under  an  ordi- 
nance of  the  city  and  county  of  San  Francisco,  was  sufflcient  to 
justify  digging  up  and  disturbing  the  street  for  the  purpose  of 
paving:  Flinn  v.  Mowry,  131  Cal.  481,  488,  63  Pac.  Rep.  724,  1006; 
but  not  grading  the  same:  Flinn  v.  Movrry,  supra;  San  Francisco  v. 
Buckman.    Ill    Cal.    25.    43    Pac.    Rep.    396. 

In  the  case  of  gradinK  under  private  contract,  under  subdivision  10 
of  §  7  of  the  Street  Improvement  Act  (Stats.  1885.  p.  147.  as  amended 
Stats.  1891,  p.  201,  Henning'.s  General  Laws,  p.  1318).  permission  of 
the  city  council  to  do  the  work  must  be  first  obtained:  Flinn  v. 
Mowry,  supra;  Durrell  v.  Dooner,  119  Cal.  411,  51  Pac.  Rep.  628.  See 
Flinn  v.  Mowry,  131  Cal.  481,  487,  63  Pac.  Rep.  724,  1006   (also  paving). 

"  Warren  v.  Hopkins,  110  Cal.  506,  42  Pac.  Rep.  986.  See  Giant 
P.  Co.  V.  San  Diego  F.  Co.,  88  Cal.  20,  22,  25  Pac.  Rep.  976. 

Oregon.  L'nder  §  3676,  Hill's  Code:  See  Pilz  v.  Killingsworth,  20 
Oreg.   432,   26  Pac.   Rep.   305. 

«  Kreuzberger  v.  W^ingfield,  96   Cal.   251,   253,    31  Pac.   Rep.    109. 

See  "Grading  and  Street-work,"  §  184,  post. 

56  Kreuzberger  v.  WMngfield,  96  Cal.  251,  253,  31  Pac.  Rep.  109; 
Bryan  v.  Abbott,  131  Cal.  222,  63  Pac.  Rep.  363  (cement  sidewalk; 
for   materials   also). 

■"  Bryan  v.  Abbott,  131  Cal.  222,  63  Pac.  Rep.  363.  See  also  Flinn 
V.  Mowry,  131  Cal.  481,  487,  63  Pac.  Rep.  724,  1006. 

Colorado.  A  lien  on  lots  for  constructing  a  sidewalk,  not  on  the 
land,  but  in  the  street  in  front  thereof,  is  not  authorized  by  2  Mills'3 
Ann.  Stats.,  |  2867,  and  said  section  is  not  modified  by  §  2871,  Id.: 
Fleming  v.  Prudential   Ins.  Co.,   19  Colo.   App.   126,   73  Pac.  Rep.   752. 

^*  Colorado.  Lindemann  v.  Belden  Consol.  M.  &  M.  Co.,  16  Colo. 
App.  342,  65  Pac.  Rep.  403:  Rara  Avis  G.  &  S.  M.  Co.  v.  Bouscher,  9 
Colo.    385,    12   Pac.    Rep".    433. 


131  LABOR    FOR    WHICH    A    LIEN    IS    GIVEN.  §   i  (32 

slides,  and  other  apparatus;    and  in  the  construction  of  a 
ditch.=" 

Nor  for  cooking  on  the  ground,  as  the  work  progressed,  in 
the  construction  of  a  reservoir  on  a  mine,  the  court  saying, 
"  If  any  lien  exists,  it  arises,  not  from  the  place  where  the 
cooking  was  done,  but  from  the  nature  of  the  services,  and 
its  relation  to  the  work  which  was  being  constructed.  If 
the  plaintiff  can  assert  a  lien  on  the  facts  proved,  he  could 
as  well  have  done  so  if  the  cooking  had  been  performed  at 
any  other  place ;  and  if  the  mere  fact  that  a  person  is  em- 
ployed to  cook  for  the  laborers  engaged  in  erecting  a  build- 
ing entitled  him  to  a  lien,  the  same  result  would  follow  if 
he  had  furnished  the  provisions  also.  On  the  same  theory,  a 
blacksmith  who  shod  the  horses,  or  a  grain  dealer  who  fur- 
nished them  forage  whilst  employed  on  the  work,  or  a 
wagon-maker  who  repaired  the  carts  of  the  contractor, 
would  be  entitled  to  a  lien  on  the  building.  And  if  every 
one  who  contributed  indirectly  and  remotely  to  the  work  is 
entitled  to  a  lien,  no  reason  is  perceived  why  a  surgeon 
called  to  set  a  broken  limb  of  one  of  the  laborers,  whereby 
he  will  be  enabled  at  an  early  day  to  resume  work  on  the 
building,  might  not  assert  a  lien;  but  services  of  this  char- 
acter, not  performed  on  the  building,  are  not  within  the 
province  of  the  statute."  *'° 

'^  South  Fork  C.  Co.  v.  Gordon,  73  U.  S.  (6  Wall.)  561,  bk.  18  L.  ed. 
894. 

•"'  Mccormick  v.  Los  Angeles  W.  Co.,  40  Cal.  185,  187.  This  case 
was  decided  under  the  act  of  March  30,  1868  (Stats.  1867-68,  pp.  589, 
590),  §1,  providing  that  "every  mechanic,  artisan,  machinist,  builder, 
contractor,  lumber  merchant,  miner,  laborer,  and  other  person  per- 
forming labor  upon  or  furtiishing  materials  of  any  kind  to  be  used 
in  tlie  con.struction,  alteration,  or  repair,  either  in  whole  or  in  part, 
of  any  mining  claim,  building,  .  .  .  shall  have  a  lien  upon  the  same 
for  the  work  or  labor  done  or  materials  furnished."  It  will  be  noticed 
that  the  statute  upon  which  this  decision  is  based  is  not  as  broad 
as  the  second  clause  of  i  1183,   "  in  a  mining  claim." 

As  to  lien  of  cook  on  mine  for  amount  of  wages,  see  Kerr'.s  Cjc. 
Corte  Civ.  Proo.,  §  1183,   note  pars.   148,   149. 

Colorado.  Nor  for  services  rendered  in  traveling  about  and  urging 
the  contractor's  material-men  to  hasten  delivery  of  materials,  under 
Mills's  Ann.  Stats.,  Rev.  Sup.,  p.  769:  Pitschke  v.  Pope,  20  Colo.  App. 
328.     See  also   Brainard  v.   McKenzie,   4   Colo.   251. 

While  liens  are  allowed  for  many  kinds  of  labor  that  the  author- 
ities term  "  incidental,"  such  incidental  labor  must  be  directly  done 
for  and  connected  with,  or  actually  incorporated  into,  the  building: 
Rara  Avis  G.  &  S.  M.  Co.  v.  Bouscher,  9  Colo.  385,  12  Pac.  Rep.  433 
(no  lien  allowed  for  disbursing  agent  and  accountant). 

Oregou.     See  Willamette  Falls  T.  &  M.  Co.  v.  Remick,  1  Oreg.  169. 


§§  163-165  mechanics'  liens.  132 

§  163.  Same.  Teaming  for  material-man.  Upon  the  prin- 
ciples set  forth  in  the  last  section,  no  lien  is  given  to  material- 
men's laborers.  Thus  no  lien  is  given  to  a  teamster  who 
hauls  bricks  '^^  or  slate  ^^  for  a  material-man. 

§  164.  Same.  Material-man's  laborer.  On  the  same  prin- 
ciples as  to  remoteness  from  the  ultimate  object  of  the  work 
and  the  nature  of  the  labor  for  which  a  lien  is  given,  hereto- 
fore discussed,  no  lien  is  allowed  to  the  one  making  the 
material,  e.  g.,  bricks,  for  the  material-man."^ 

§  165.  Same.  Test,  legitimate  connection  with  work  of 
mine.  On  the  other  hand,  it  was  said  that  "  the  character  of 
the  work  should  not  be  scrutinized  too  strictly.  If  the  labor 
had  a  legitimate  connection  with  the  working  of  the  mine,  it 
is  sufficient,  within  the  meaning  of  the  lien  law."  °* 

"  Adams  V.  Burbank,  103  Cal.  646,  651,  37  Pac.  Rep.  640;  Harmon 
V.  San  Francisco  &  S.  R.  R.  Co.,  86  Cal.  617,  618,  25  Pac.  Rep.   124. 

But  otherwise  if  the  hauling  was  done  for  the  orig-inal  contractor, 
under  a  void  statutory  original  contract:  McClain  v.  Hutton,  131 
Cal.    132,    138,    63    Pac.    Rep.    182,    622,    61    Id.    273. 

See    §§   91,    162,    ante. 

Oregon.  By  2  Hill's  Ann.  Laws,  §  3669,  a  lien  is  given  for  "  trans- 
porting or  hauling  material  ...  to  be  used  in  the  construction,"  etc., 
of  the  objects  mentioned  in  tiie  section.  But  no  lien  was  allowed 
thereunder  for  hauling  or  transporting  tools  and  appliances  for  rais- 
ing a  house:  Allen  v.  Elwert,  29  Oreg.  428,  44  Pac.  Rep.  823,  48  Pac. 
Rep.    54. 

«=  Wilson  V.  Nugent,  125  Cal.  280,  284,  57  Pac.  Rep.  1008  (it  did 
not  appear  that  the  cost  of  cartage  was  included  in  the  contract 
price). 

<=3  Adams  V.  Burbank,   103   Cal.   646,   651,   37   Pac.  Rep.   640    (dictum). 

See  ante,   §  46. 

^  Malone  v.  Big  Flat  G.  M.  Co.,  76  Cal.  578,  586,  18  Pac.  Rep.  772 
(decided  under  "the  law  as  it  stood  in  1880."  Note,  however,  that 
S  1183  was  amended  in  1880). 


133  ON    WHAT    LABOR    MUST    BE   DONE.  §  166 


CHAPTER     X. 

OBJECT     ON    WHICH     LABOR    MUST     BE     PERFORMED. 

§  166.  Distinction  between  "  object  "  and  "  property." 

?  167.  Constitutional  provision. 

§  168.  Division  of  the  statute. 

§  169.  Statutory  provisions. 

§  170.  Definition  of  terms  used  herein. 

§  171.  Same.     "  Improvement.*'     "  Structure." 

§  172.  Structure  on  a  mine.     Oil-well. 

§173.  "Structures,"  in  general.     First  clause  of  statute. 

§  174.  Structures  not  enumerated  in  statute. 

§  175.  Structures  enumerated  in  statute.     Buildings. 

§  176.  Same.     Bridges. 

§  177.  Same.     Aqueduct,  ditch,  and  flume. 

§  178.  Same.     Well. 

§  179.  Same.     Tunnel. 

§  180.  Same.     Machinery. 

§  181.  Same.     Railroad. 

§  182.  Mining  claims,  and  real  property    worked  as  a  mine.      Sec- 
ond clause  of  statute. 

§  183.  Definition  of  "  mine." 

§  184.  Grading  and  street-work  under  code  provision. 

§  185.  Fixtures.     In  general. 

§  186.  Same.     Question  of  fact.     Building. 

§  187.  Same.     Principles  of  determination. 

§  188.  Lien  primarily  on  structure. 

§  189.  Work  upon  fixtures,  how  deemed. 

§  190.  The  severance  of  buildings  from  the  freehold. 

§  191.  Work  on  fixtures  in  mine. 

§  192.  Public  property. 

§  166.  Distinction  between  "  object  "  and  "  property."  A 
distinction  must  be  drawn  between  the  "  object  "  upon  Avhich 
the  work  must  be  done  in  order  to  gain  a  lien,  and  the 
"  property  "  to  which  the  lien  extends,  which  may  be  either 
rights  or  olijects. 

The  "property"  may  be:  1.  Physically,  considerably 
greater  in  extent  than  the  object ;  but,  on  the  other  hand,  it 
may  not  include  the  object;   or  2.  It  may  be  the  fee-simple, 


§§  167-169  MECHAXICS'    LIENS.  134 

or  an  estate  or  interest  less  than  the  fee-simple.  The  latter 
matters  will  be  considered  hereafter.^  Some  confusion  has 
arisen  by  reason  of  the  failure  to  observe  these  distinc- 
tions. This  subject  is  also  closely  related  to  the  nature 
of  the  labor  for  which  a  lien  is  given,  which  has  already 
been  considered.- 

§  167.  Constitutional  provision.  The  constitution  of 
California '  provides  that  lien-holders  "  shall  have  a  lien 
upon  the  '  property '  upon  which  they  have  bestowed  labor 
or  furnished  material."  * 

§  168.  Division  of  the  statute.  It  has  already-  been 
shown,  in  a  general  way.  that  there  are  three  great  divis- 
ions of  the  California  statute,  two  of  these  divisions  being 
contained  in  section  eleven  hundred  and  eighty-three  of 
the  Code  of  Civil  Procedure,  relating  to  "  structures  "  and 
"  mines,"  and  one  of  them  in  section  eleven  hundred  and 
ninety-one  of  the  same  code,  relating  to  grading,  etc., 
work  on  lots.^ 

§  169.  Statutory  provisions.  In  obedience  to  the  above- 
mentioned  provision  of  the  California  constitution,  the  code 
provisions  on  mechanics'  liens  **  relating  to  real  property 
have  assumed  the  present  form.  Section  eleven  hundred  and 
eighty-three  of  the  Code  of  Civil  Procedure  enumerates  two 
sets  of  objects  upon  which  the  labor  must  be  performed: 
1.  Under  the  first  clause,  upon  any  "  building,  wharf, 
bridge,  ditch,  flume,  aqueduct,  well,  tunnel,  fence,  ma- 
chinery, railroad,  wagon-road,  or  other  structure,"  although 
the  lien  is  given  upon  the  "  property  "  upon  which  they  have 
bestowed  labor  or  furnished  the  material ;  and  2.  Under  the 
second  clause,  "  in  any  mining  claim  or  claims,  or  in  or  upon 

1  See  "  Property  Extent  of  Lien,"  |S  438  et  seq.,  post. 

»  See  §§  130-165,  ante. 

'  Cal.  Const.  1879,  art.  xx,  §  15,  Henning's  General  I>,aws,  p.  civ. 

♦  Berentz  v.  Belmont  O.  Co.,  148  Cal.  577.  583.  84  Pac.  Rep.  47.  113 
Am.  St.  Rep.  308.  rever.siu«  s.  c.    (Cal.  App. )    84  Pac.  Rep.  45. 

'•  See    §§  130-134.    ante. 

•  Kerr's  Cjc.  Code  Civ.  Proc,  §§  1183-1203a. 


135  ON    WHAT    LABOR    MUST    BE    DONE.  §  170 

any  real  property  worked  as  a  mine."  '  Section  eleven  hun- 
dred and  ninety-one  of  the  Code  of  Civil  Procedure  enumer- 
ates as  the  objects  upon  which  the  labor  must  be  performed, 
"  any  lot  in  any  incorporated  citA',  or  the  street  or  sidewalk 
in  front  of  or  adjoining  the  same,  or  any  areas,  or  vaults,  or 
cellars,  or  rooms  under  the  sidewalks,"  *  and  the  lien  is  given 
upon  the  lot. 

§  170.  Definition  of  terms  used  herein.  In  the  discussion 
of  this  subject,  the  thing  upon  which  the  labor  must  be  per- 
formed in  order  to  gain  a  lien  will  be  designated  as  the 
object  of  the  labor,  and  the  thing  over  which  the  lien  extends 
Avill  be  designated  as  the  property  subject  to  the  lien.  The 
objects  of  the  labor  are  given  various  generic  designations 
in  different  sections  of  the  code,  the  same  being  marked  by 
uncertainty  and  indecision  in  their  use.'' 

'  Under  the  act  o£  April  19,  1856,  giving  a  lien,  in  the  first  section, 
for  the  work  and  labor,  or  materials  furnished,  for  the  construction 
or  repairing  of  any  building,  wharf,  or  other  superstructure,  and  in 
the  tenth  section  for  the  making,  altering,  or  repairing  of  personal 
property,  and  under  the  fourth  section  giving  a  lien  upon  the  land,  if 
at  tlie  time  the  land  belonged  to  the  person  who  caused  the  super- 
structure to  be  erected,  the  court  said:  "Putting  these  different  pro- 
visions together,  the  evident  intention  of  the  act  was  to  give  me- 
chanics and  artisans  a  lien  for  all  work  done  by  them  upon  any 
description  of  property":    McCreary  v.  Osborne,  9  Gal.  119,  123. 

*  See  §§  133,    134,   139,   156-160,  ante. 

"  §1183  of  the  Code  of  Civil  Procedure  provides:  "Mechanics  .  .  . 
shall  have  a  lien  upon  the  property  upon  which  they  have  bestowed 
labor  or  furnished  materials,  for  the  value  of  such  labor  done  and 
materials  furnished,  [1]  whether  at  the  instance  of  the  owner, 
or  of  any  other  person  acting  by  his  authority  or  under  liens,  as 
contractor  [1]  or  otherwise;  and  any  person  who  performs  labor  in 
any  mining  claim  or  claims,  or  in  or  upon  any  real  property  worke(" 
as  a  mine,  .  .  .  has  a  lien  upon  the  same  .  .  .  for  the  work  or  labor 
done  or  materials  furnished  by  each  respectively,  [2]  whether  done 
or  furnished  at  the  instance  of  the  owner  of  such  mining  claim  or 
claims  or  real  property  worked  as  a  mine  or  of  the  building,  or  othei 
improvement,  or  liis  agent  [2]." 

If  the  expression  **  buildiui;',  or  other  iniproveiueut,"  in  the  clause 
set  off  and  marked  by  the  [2]  in  the  above  quotation,  relates  to 
"  mining  claim,"  among  other  objects,  such  "  mining  claim  "  would 
seem  to  be  within  the  classification  of  "buildings"  or  "improve- 
ments"; if,  on  the  other  hand,  it  relates  to  "structures"  only,  under 
the  clause  set  off  and  marked  by  the  [1],  it  seems  to  be  an  unneces- 
sary repetition  of  the  first  of  the  passages  above  set  off  as  indi- 
cated. If  the  expression  "  building,  or  other  improvement,"  in  the 
second  clause,  is  construed  as  relating  to  "  mining  claim,"  and  af 
indicating  the  labor  performed,  which  results  in  the  "  building  or 
improvement,"  the  second  of  the  claims  set  off  may  be  given  some 
significance. 


§  171  mechanics'  liens.  136 

§  171.  Same.  "  Improvement."  "  Structure."  The  expres- 
sions "  improvement  "  and  "  structure,"  as  used  in  different 
sections  of  the  statute,  having  meanings  greater  or  less  in 

It  is  to  be  noted,  In  this  connection,  that  the  object  may  come  into 
existence  as  an  "improvement"  or  "building"  by  the  exercise  of 
labor  upon  the  property;  for  instance,  a  structure  erected  upon  a 
bare  lot  comes  into  existence  as  an  object  by  the  application  of  labor, 
and  the  "  improvement  "  then  exists.  The  performance  of  the  work 
and  the  coming  into  existence  of  the  object  may  be  synchronous 
events,  and  may  go  on  pari  passu  :  Curtis  v.  Sestanovich,  26  Oreg. 
107,  115,  37  Pac.  Rep.  67;  Garland  v.  Bear  Lake  &  R.  W.  &  Irr.  Co.,  9 
Utah   350,  34  Pac.  Rep.   368. 

The  object  or  "  improvenient,"  in  some  instances,  may  be  con- 
sidered the  result  of  the  labor,  or  the  final  cause  thereof.  The  Cali- 
fornia supreme  court  has  said  (dictum):  "In  all  these  sections  [Code 
Civ.  Proc,  §§  1183,  1184,  1185,  11S7],  —  and  others  might  be  mentioned, 
—  the  term  'improvement'  is  evidently  used  as  equivalent  to  the 
object  upon  which  the  labor  has  been  performed,  and  it  would  be  an 
unwarranted  application  of  the  term  to  construe  it  as  equivalent  to 
the  labor  itself,  or  to  that  particular  class  of  labor  for  which  the 
claimant  was  employed":  Davis  v.  MacDonough,  109  Cal.  547,  551,  42 
Pac.  Rep.  450. 

The  clause  following  the  passage  from  §  1183,  above  quoted,  is  as 
follows:  "And  every  contractor,  ...  or  other  person  having  charge 
of  any  mining,  ...  or  the  construction,  alteration,  addition  to,  or 
repair,  ...  of  any  building  or  other  improvement,  as  aforesaid,  .  .  . 
shall  be  held  to  be  the  agent  of  the  owner  for  the  purposes  of  this 
chapter."  Here  "  mining  "  is  set  over  against  certain  work  and  "  any 
building  or  other  improvement."  The  reference  seems  aimed  rather 
at  the  work  than  at  the  object.  "  Mining,"  however,  may  be  done 
either  in  a  "mine"  or  in  a  "mining  claim"  ;  but  it  has  been  seen 
that   the   former  expression   is  brouder   than   the   latter. 

\Vork  in  a  mine,  upon  land  held  under  an  asrieultural  patent,  or 
in  a  Mexican  or  Spanish  grant,  it  has  been  held,  does  not  fall  within 
the  purview  of  the  second  clause  of  §  1183,  as  it  stood  before  the 
amendment  of  1903.  Mining  in  a  mining  claim  may  therefore  possibly 
be  meant.  And  this  may  tend  to  show  that  a  mining  claim  is  not  a 
"building  or  other  improvement  as  aforesaid."  within  the  meaning 
of  the  clause  now  discussed.  In  the  case  last  cited,  the  court  said: 
"  In  a  subsequent  portion  of  the  same  section  [Code  Civ.  Proc, 
§1183],  these  enumerated  objects  ["structures."  under  the  first 
clause]  are  grouped  into  '  building  or  other  improvement.'  "  It  is 
uncertain  to  which  of  the  two  clauses  quoted  in  this  note  the  lan- 
guage of  the  supreme  court  has  reference;  but,  at  any  rate,  it  tends 
to  show  that  a  "  mining  claim  "  is  an  object  different  from  a  "  build- 
ing or  other  improvement." 

In  §  1184,  in  the  clause  relating  to  posting  notices  of  the  perform- 
ance of  labor  or  the  furnishing  of  materials,  we  find  a  requirement 
to  post  it  "  in  a  conspicuous  place  upon  the  mining  claim  or  improve- 
ment"; again  tending  to  show  that  a  "mining  claim"  is  not  within 
the  meaning  of   "  improvement." 

In  §  1185  we  find  the  expression,  "  building,  impi;ovement,  well,  or 
structure,"  used  twice  in  reference  to  the  "space"  about  the  same 
"for  the  convenient  use  and  occupation  thereof";  which  also  seems, 
but  not  so  clearly,  to  exclude  "  mining  claims." 

In  §  1186  we  find  tlie  expression,  "  building,  improvement,  or 
structure,"   used   twice   in   reierence   to   priority   over   other   liens   and 


•ij 


f 


137  ON    WHAT    LABOR    MUST    BE    DONE.  §  171 

scope,  in  accordance  with  the  context  in  which  they  are 
found;  each  of  the  expressions,  "structures"  or  "improve- 
ments," is  sufficiently  extensive  in  meaning  to  include  all  the 

encumbrances,  but  no  reference  made  to  mining  claims.  Qusere, 
Does  the  former  expression   include  the   latter? 

lu  §  11.S7  the  expression,  "  building-,  improvement,  or  structure,"  is 
used  nine  times,  once  in  contradistinction  to  "  labor  in  a  mining 
claim,"  in  reference  to  notice  of  completion  of  the  building,  etc.,  and 
the   filing  of  the  claim   of  lien. 

In  §1190  we  find  the  expression,  "building,  mining  claim,  im- 
provement, or  structure,"  in  reference  to  the  statutes  of  limitations; 
again  showing  that  "mining  claim"  is  not  included  in  the  other 
objects    enumerated. 

In  §  1193,  however,  we  find  the  expression,  "  building  or  other  im- 
provement mentioned  in  §  11S3  of  this  code,"  and  the  expression, 
"building  or  other  improvement,"  relating  to  estoppel  of  the  owner 
by  failing  to  post  notice  of  non-responsibility;  and  it  has  been 
assumed  that  this  section  has  no  application  to  mining  claims. 

In  §1188  we  find  the  expression,  "buildings,  mining  claims,  or 
other  improvements,"  m  reference  to  the  filing  of  a  claim  against 
two  or  more  of  such  objects;  and  later  in  the  same  section  the 
expression,  "buildings  or  other  improvements";  which  would  tend 
to  show  that  the  work  done  or  accomplished  in  a  mining  claim  is 
an   "  improvement." 

In  §  1196  we  find,  in  reference  to  the  attachment  or  execution,  etc., 
of  materials  furnished  for  use  in  the  construction,  alteration,  or 
repair  of  "any  building  or  other  improvement,"  that  they  are 
exempt,  so  long  as  in  good  faith  the  same  are  about  to  be  applied  to 
the  construction,  alteration,  or  repair  of  such  "  building,  mining 
claim,  or  other  improvement";  again  classing  accomplished  work 
on  a  mining  claim  with   "  other  improvement." 

"  Improvement."  No  "  hard-and-fa-st  "  definition.  It  seems  that 
no  liard-and-fast  definition  can  be  given  to  the  expression  "  improve- 
ment "  to  make  it  descriptive  of  the  object  of  the  labor,  at  least  so 
far  as  a  mining  claim  is  concerned.  It  is  evident  that  a  "  structure  " 
may  be  erected  in  a  mining  claim,  or  in  or  upon  real  property 
worked  as  a  mine;  but  in  such  case  it  seems  the  work  is  to  be 
regarded  as  done  under  the  second  clause  of  §  1183,  and  not  upon  a 
"structure"  under  the  first  clause  of  that  section:  See  §§  130  et  seq., 
ante. 

In  reference  to  "structures"  under  the  fir.>*t  clau.se  of  §1183,  the 
supreme  court  has  said  :  "  In  a  subsequent  portion  of  the  same 
section  these  enumerated  objects  are  groupd  into  'building  or  other 
improvement,'  and  in  subsequent  sections  they  are  designated  as 
'  building,  improvement,  or  structures.'  It  is  thus  evident  that  the 
term  'improvement,'  as  used  in  §1187,  is  intended  to  embrace  the 
several  enumerated  objects  in  the  beginning  [first  clause]  of  §  1183, 
other  than  'building'  and  'structure'"  :  Davis  v.  MacDonough,  109 
Cal.  547,  551,  42  Pac.  Rep.  450. 

It  is  to  be  noted,  however,  that  in  §  1183,  as  shown  above,  the 
expression,  "building  or  other  improvement,"  seems  to  include  all 
the  "structures,"  at  least  other  than  "building,"  mentioned  in  the 
flrst  clause  of  §1183,  and  hence  Includes  "structures";  so  that,  in 
this  connection,  in  certain  clauses  it  seems  that  "  improvement  " 
includes  "structures"  other  than  "building."  Likewise  in  §§1188, 
1192,  and  1196  of  Kerr's  Cyc.  Code  Civ.  Proc. 


§§  172,  173  mechanics'  liens.  138 

objects  enumerated  in  the  first  clause  of  section  eleven  hun- 
dred and  eighty-thi ve ;  ^"  and  in  most  instances  they  denote 
the  accomplished  work,  that  is,  the  object,  and  not  the  labor, 
but  the  result  of  the  labor,  whether  under  the  first  clause 
or  under  the  second  clause  of  section  eleven  hundred  and 
eighty-three  of  the  Code  of  Civil  Procedure.^^ 

§  172.  Structure  on  a  mine.  Oil-well.  When  any  one  of 
the  "  structures  '"  enumerated  in  section  eleven  hundred  and 
eighty-three  ^^  is  an  adjunct  or  appurtenance  to  a  mining 
claim  or  mine,  the  effect  is  to  transfer  the  object  from  the 
first  to  the  second  clause  of  the  section.^^  The  two  clauses 
are  not  mutually  exclusive.  Hence  a  well  drilled  for  the 
purpose  of,  extracting  mineral  oil,  in  a  tract  of  land,  creates 
a  mining  claim  or  mine,  notwithstanding  the  inclusion  of 
"  wells  "  in  the  enumeration  of  structures  in  the  first  clause.'* 

§  173.     "  Structures,"  in  general.    First  clause  of  statute. 

"  The  use  of  the  phrase  '  other  structure,'  "  in  the  above- 
quoted  extract  (the  first  clause)  of  section  eleven  hundred 
and  eighty-three,  "  shows  that  the  word  '  structure  '  compre- 
hends all  the  properties  specifically  enumerated,  and  is  broad 

"  See   §  141,   ante. 

"  Amendment  of  1897  to  §  1187.  It  is  to  be  noted  in  this  connec- 
tion that  under  the  amendment  of  1897  to  §  1187,  relating  to  notice 
of  completion  of  building,  we  find  the  expression,  "  construction,  .  .  . 
of  any  work  mentioned  in  §1183  of  this  code."  The  word  "work" 
apparently  refers  to  the  object  or  accomplished  work  enumerated  in 
that  section. 

Colorado.  See  Small  v.  Foley,  8  Colo.  App.  435,  47  Pac.  Rep.  64 
(1889). 

12  Kerr's  Cyc.  Code  Civ.  Proe.,  §  1183. 

13  Berentz  v.  Belmont  Oil  Co.,  148  Cal.  577,  581,  84  Pac.  Rep.  47,  113 
Am.  St.  Rep.  308,  reversing  s.  c.  (Cal.  App.)  84  Pac.  Rep.  45; 
Williams  v.  Mountaineer  G.  M.  Co..  102  Cal.  134,  34  Pac.  Rep.  702, 
36  Id.  388.  See  Parke  &  Lacy  Co.  v.  Inter  Nos  O.  &  D.  Co.,  147  CaL 
490,  492,  82  Pac.  Rep.  51,  and  Jordan  v.  Myres,  126  Cal.  565,  567,  58 
Pac.   Rep.    1061. 

"  Berentz  v.  Belmont  Oil  Co.,  148  Cal.  577,  583,  84  Pac.  Rep.  47,  113 
Am.  St.  Rep.  308. 

See  Martin's   Mining  La^v,   passim. 

Oregon.  Mill  or  tramway  built  and  used  in  connection  with  a 
mine  is  a  "  structure,"  but  a  mine  or  mining'  claifn  is  not  a  "  struc- 
ture": Watson  V.  Noonday  M.  Co.,  37  Oreg.  287,  60  Pac.  Rep.  994,  996 
(under   Hill's   Ann.   Laws.   §3669). 

Wasliingtitn.  Lien  on  well,  under  §  1,  p.  229,  ch.  cxvi.  Laws  1905: 
Lee  V.  Kimball   (Wash.),  88  Pac.  Rep.  1121. 


l^li  Ox\'    WJIAT    LABOR    MUST    BE    DONE.  §  174 

enough  to  include  any  similar  thing  constructed,  should  the 
enumeration  prove  incomplete.  Following  this  with  the  lan- 
guage '  and  any  person  who,'  it  would  seem  to  show  that  a. 
mining  claim  was  not  included  in  the  structures  upon  which 
liens  were  allowed."  ^°  As  shown  above,  the  expression 
"  structure,"  or  "  other  structure,"  has  been  determined  to 
have  different  significations,  in  accordance  with  the  context. 
Thus : 

A  "  mine  "  or  pit  sunk  within  a  mining  claim  is  a  "  struc- 
ture," within  the  meaning  of  the  statute  providing  for  liens 
of  mechanics  and  others  upon  real  property.^" 

§  174.  Structures  not  enumerated  in  statute.  Whether 
structures  not  enumerated  in  the  statute  carry  a  right  to  a 
mechanic's  lien  depends  upon  the  nature  of  the  structure,  the 
character  of  its  connection  to  the  realty  or  an  improvement 
thereon,  and  the  uses  for  which  it  is  intended.  A  structure 
may  be  a  part  of  a  larger  structure,  and,  in  reference  to  it, 
constitute  but  a  part  of  a  structure.  In  such  case  it  is  well 
settled  that  the  lien  must  cover  the  entire  structure,  and  not 
the  specific  addition. ^'^    Thus  where  a  — 

Boarding-house,  and  other  improvements  and  structures, 
are  put  upon  a  mining  claim,  the  material-man  wull  have  a 

'■  Williams  v.  Mountaineer  G.  M.  Co.,  102  Cal.  134,  139,  34  Pac. 
Rep.  702,  36  Id.  388;  Pacific  Rolling  M.  Co.  v.  Bear  Valley  Irr.  Co., 
120  Cal.  94,   98,   52  Pac.  Rep.   136,   65  Am.  St.  Rep.   158. 

Oregon.  Compare:  Giant  Powder  Co.  v.  Oregon  Pac.  R.  Co.,  42 
Fed.  Rep.  470,  8  L.  R.  A.  700. 

"=  Helm  V.  Chapman,  66  Cal.  291,  5  Pac.  Rep.  352,  5  W^est  Coast  Rep. 
127,  cited  in  Pennsylvania  Steel  Co.  v.  J.  E.  Potts  S.  &  L.  Co.,  63  Fed. 
Rep.  11,  14,  11  C.  C.  A.  11,  22  U.  S.  App.  537;  Silvester  v.  Coe  Quartz  M. 
Co.,  80  Cal.  510,  512,  22  Pac.  Rep.  217;  Williams  v.  Mountaineer  G.  U. 
Co..   102  Cal.   134,   142,   34   Pac.  Rep.   702,   36  Id.   388. 

Uregron.  See  Watson  v.  Noonday  M.  Co.,  37  Oreg.  287,  60  Pac  Rep 
994,  996. 

"  Williams  v.  Mountaineer  G.  M.  Co.,  102  Cal.  134,  34  Pac.  Rep.  702, 
36  id.  388.  See  Cox  v.  Western  Pac.  R.  Co.,  44  Cal.  28;  DicRenson  v. 
Bolyer,  55  Cal.  285;  Silvester  v.  Coe  Quartz  M.  Co.,  80  Cal.  510,  22  Pac. 
Kep.   217. 

t'olorndu.  Structure:  See  Small  v.  Foley,  8  Colo.  App.  f35,  47 
Puc.   Rep.   64. 

Georgria.  Farmers'  L.  &  T.  Co.  v.  Candler,  87  Ga.  241,  13  S.  E  Ren 
660. 

Indiana.     Midland  R.  Co.  v.  Wilcox,   122  Ind.   84,   23  N.  E.   Rep.   506. 

Ort'Kon  seems  to  hold  contrary  to  the  general  doctrine,  and  gives 
a  lien  on  the  specific  structure  in  certain  cases  :  See  Watson  v.  Noon- 
day M.  Co.,  37  Oreg.   287,   60    Pac.  Rep.  994. 


§  174  mechanics'  liens.  140 

right  to  a  lien  on  the  mining  claim,  not  upon  the  boarding- 
house.^® 

Ice-room,  built  in  and  attached  to  the  structure  of  a  ware- 
house in  such  a  manner  that  it  cannot  be  removed  without 
being  torn  to  pieces,  becomes  a  part  of  the  warehouse,  and  a 
material-man  is  entitled  to  a  lien  upon  the  warehouse  for 
the  materials  furnished  for  such  ice-room.^^ 

Pipe  line  for  an  irrigation  company  assumed,  but  not 
decided,  to  be  within  provisions  of  mechanic's-lien  law,  and 
lien  of  material-man  enforced. -° 

Poles  set  in  ground,  connected  together  by  wire  in  the 
usual  way  for  the  transmission  of  electricity,  for  the  pur- 
poses of  light,  heat,  and  power,  are  thought  to  constitute  a 
"  structure,"  within  the  provisions  of  the  law  providing  a 
lien  for  mechanics,  laborers,  material-men,  and  others.-^ 

Reduction-works  erected  upon  a  mine  gives  the  material- 
man a  right  to  a  lien  upon  the  entire  mining  claim  for  the 
materials  furnished  therefor.-- 


Whether  materials  affixed  to  building  or  structure  so  as  to  become 
a  part  thereof,  is  a  question  of  fact  to  be  determined  by  the  trial 
court  from  the  evidence  before  it:  See  Bianclii  v.  Hughes,  124  Cal. 
24,  28,  56  Pac.  Rep.  610;  Stevenson  v.  Woodward,  3  Cal.  ^pp.  754,  86 
Pac.   Rep.   990. 

"  Williams  v.  Mountaineer  G.  M.  Co.,  102  Cal.  134,  34  Pac.  Rep.  702, 
36  Id.   388. 

Oregon  rule  would  g-ive  lien  upon  separate  structure  erected:  See 
Watson  V.  Noonday  M.  Co.,  37  Oreg.  287,  60  Pac.  Rep.  994. 

i»  Stevenson  v.  Woodward,   3  Cal.  App.   754,   86  Pac.   Rep.   990. 

See  §  189,  post. 

=»>  First  Nat.  Bank  v.  Perris  Irr.  Dist.,  107  Cal.  55,  40  Pac.  Rep.  45. 

See  §  177,  post. 

='  Forbes  V.  Willamette  Falls  Electric  Co.,  19  Oreg.  61,  23  Pac. 
Rep.  370  (Hill's  Code,  §3669),  citing  Helm  v.  Chapman,  66  Cal.  291, 
5  Pac.  Rep.  352,  5  West  Coa.st  Rep.  127.  And  see  Giant  Powder  Co.  v. 
Oregon  Pac.  R.  Co.,  42  Fed.  Rep.  470,  473,  8  L.  R.  A.  700,  and  Pennsyl- 
vania Steel  Co.  V.  J.  E.  Potts  S.  &  L.  Co.,  63  Fed.  Rep.  11,  11  C.  C.  A.  11, 
22  U.  S.  App.   537,  considering  the  foregoing  cases. 

Teleplione  line.  Meelianic's  lien  on.  In  Roebling  Sons  Co.  v.  Bear 
Valley  Irr.  Co.,  99  Cal.  488,  34  Pac.  Rep.  80,  an  attempt  was  made  to 
enforce  a  mechanic's  lien  upon  a  telephone  line;  but  it  seems  that  no 
question  was  raised  as  to  whetlier  or  not  the  land  was  subject  to  the 
lien,  the  evidence  not  showing  whether  the  materials  were  pur- 
chased for  that  particular  line. 

22  Williams  v.  Mountaineer  G.  M.  Co.,  102  Cal.  134,  34  l*ac.  Rep.  702, 
36   Id.   388. 

See  further  authorities  in  note  17,  this  chapter. 

Oregon  rule  gives  lien  on  separate  structure  :  See  Watson  v. 
Noonday  M.  Co.,   37  Oreg.   287,  60  Pac.  Rep.   994. 


141  ON    WHAT    LABOR    MUST    BE    DONE.  §§  175,  176 

Stamp-mill  erected  upon  a  mining  claim  is  governed  by 
the  same  rules  as  a  reduction-works  erected  thereon.-^ 

Swings,  consisting  of  two  upright  posts  in  the  ground  and 
braced  and  connected  at  the  top  by  cross-pieces  with  rings 
in  them,  and  seats  attached,  are  not  "  structures,"  within 
the  meaning  of  the  provision  of  the  mechanic's-lien  law.^* 

Tramway  erected  upon  a  mining  claim,  for  use  in  con- 
nection with  the  work  of  operating  the  mine  on  said  claim, 
is  governed  by  the  same  rules  as  reduction-works  and  stamp- 
mills.-^ 

§  175.     Structures  enumerated  in  statute.    Buildings  being 

enumerated  in  the  statute,  other  requisites  necessary  to  en- 
title to  a  lien  being  present,  the  only  question  to  be  deter- 
mined is,  whether  the  improvement  is  such  a  building  or 
structure  as  comes  within  the  purview  of  the  statute  giving 
the  right  to  a  lien.^*^  We  have  already  referred  to  some 
buildings  and  structures  not  enumerated  within  the  statute ; 
but  there  are  others,  as : 

Dance-hall,  being  a  covered  structure  resting  on  sills, 
partly  weather-boarded  around  the  sides,  without  doors  and 
windows,  —  quaere,  whether  a  "  building,"  within  the  mean- 
ing of  the  statute ;  also,  whether  a  "  trade-fixture,"  under 
circumstances  of  the  particular  case.-^ 

Church  is  a  "  building,"  within  the  meaning  of  the  me- 
chanic's-lien law,  and  is  subject  to  the  lien,  not  being  exempt 
from  execution. ^^ 

§  176.  Same.  Bridges  are  expressly  provided  for  in  sec- 
tion eleven  hundred  and  ninety-three  of  the  Code  of  Civil 
Procedure.  Under  the  act  of  1850,  which  gave  a  lien  upon 
buildings  and  wharves,  it  was  held  that  a  bridge  did  not 
come  Avithin  the  meaning  of  the  statute.-® 

*^  See  authorities  in  last  note. 
"  Lothian  v.  Wood,  55  Cal.  159,  163. 
^  See  authorities  in  note  22,  this  chapter, 
ao  Kerr's  Cyo.  Code  Civ.  Proc,  §§  1183-1203a. 
="  Lothian  v.   Wood,    55   Cal.    159,   163. 

Colorutlo.     Small  V.   Foley.   8  Colo.   App.   435,   47  Pac.   Rep.   64    (1589). 
'■"-   Ucirrisburg-  L.   Co.   v.  Washburn,    29   Greg.   150,    160,   44   Pac.   Rep. 
390. 

^  Burt   V.   Washington,    3    Cal.    246. 


§§  177-179  MECHAXICS'    LIENS.  142 

§  177.  Same.  Aqueduct,  ditch,  and  flume.  A  lien  is  now 
given,  under  the  first  clause  of  section  eleven  hundred  and 
eighty-three  of  the  Code  of  Civil  Procedure,  for  work  upon  a 
flume,  and  it  is  within  the  meaning  of  the  phrase,  "  building, 
improvement,  or  structure,"  as  used  in  section  eleven  hundred 
and  eighty-seven  of  the  same  code,  relating  to  the  evidence 
of  the  completion  of  the  same.^°  In  an  early  case  it  was  said : 
"  The  flumes  constructed  at  different  parts  of  the  line  cannot 
change  the  general  character  of  the  work  as  an  excavation. 
These  flumes  were  mere  connecting  links  of  the  ditch,  over 
ravines  and  gulches.  As  a  ditch,  then,  the  general  work 
must  be  regarded,  and,  as  such,  the  statute  gives  no  lien 
upon  it  for  labor  bestowed,  or  materials  furnished,  in  its  con- 
struction. The  language  of  the  statute  is,  '  building,  wharf, 
or  other  superstructure.'  A  ditch,  of  course,  is  not  a  build- 
ing, or  a  wharf,  and  in  no  sense  can  it  be  designated  a  super- 
structure." ^^ 

§  178.  Same.  Well.  A  lien  is  now  given  expressly  on 
wells,  in  the  first  clause  of  section  eleven  hundred  and  eighty- 
three,  relating  to  structures.^-  Although  it  was  intimated, 
as  dictum,  that  this  term  was  probably  intended  to  include 
oil-wells,^^  yet  a  well  is  a  structure  or  a  part  of  a  mining 
claim,  depending  upon  the  circumstances  of  the  case.^'' 

§  179.  Same.  Tunnel.  Tunnels  are  very  often  con- 
structed in  mining  claims,  and  in  such  cases  it  would  seem 
that  the  principles  applicable  to  mining  claims  would  pre- 

3"  Giant  Powder  Co.  v.  San  Diego  F.  Co.,  88  Cal.  20,   22,  25  Pae.  Kep. 

976. 

Uitoli  anil  flume  in  mining  claim:  See  Williams  v.  Mountaineer  G.  M. 
Co.,  102  Cal.  134,   140,  34  Pac.  Rep.   702,  36  Id.  388. 

Kew  Mexico.  See  Ford  v.  Springer  Land  Assoc,  8  N.  M.  37,  41  Pac. 
Rep.    541. 

"  Ellison  V.  Jackson  W.  Co.,  12  Cal.  542,  554  (1855);  Horn  v.  Jones, 
28  Cal.  195,  204.  See  Head  v.  Fordyce,  17  Cal.  149,  153  (1856).  But 
see  Reynolds  v.  Hosnier,  51  Cal.  205,  208. 

L'tali.     Canal:    Garland  v.  Irr.  Co.,  9  Utah  350,  34  Pac.  Kep.  368. 

Wasliineton.     Nelson  v.  Clerf,  4  Wash.  405,  30  Pac.  Rep.  716. 

=-  Kerr'js  Cyc.  Code  Civ.  Proc,  S  1183,  as  amended  in  1899. 

-3  Parke  and  Lacy  Co.  v.  Inter  Nos  O.  &  D.  Co.,  1-47  Cal.  490,  493,  82 
Pac.  Rep.  51. 

'*  See  S  17  2.  ante. 

\Vasbinf;tou.  Lien  allowed  on  a  well;  Lee  v.  Kimball  (Wash.), 
88  Pac.  Rep.   1121. 


143  ox    WHAT    LABOR    MUST    BE    DONE.  §  180 

vail,  to  the  same  extent,  at  least,  as  in  the  case  of  wells  and 
other  structures  enumerated  in  section  eleven  hundred  and 
eighty-three."'' 

;^  180.  Same.  Machinery.  The  chapter  ''■'''  in  which  the 
provisions  relating  to  mechanics'  liens  are  found  relates  to 
liens  upon  real  property,  and  it  seems  that  under  these  sec- 
tions the  work  upon  a  machine  must  be  upon  it  as  a  fixture 
to  the  realty.^"  And  where  a  machine  does  become  a  fixture, 
the  work  done  or  materials  furnished  for  it  may,  under  cer- 
tain circumstances,  be  regarded  as  done  or  furnished  for  the 
building  or  structure. ^^ 

•»■  See  Williams  v.  Mountaineer  G.  M.  Co.,  102  Cal.  134,  140,  34 
Pac.  Rep.   702,   36  Id.   38S. 

As  to  «ork  on  a  tunnel  not  in  a  mining  claim,  see  Giant  Powder  Co. 
V.  San  Dieg-o  F.  Co.,  88  Cal.  20,  22,  25  Pac.  Rep.  976.  See  also  All  Louis 
V.  Harwood,  140  Cal.  500,  74  Pac.  Rep.  41  (tunnel  to  develop  water 
impliedly  held  to  fall  within  the  tirst  clause  of  §  1183  of  Kerr's  C'jc. 
Code  Civ.  Proc,  on  structures). 

See  also  §  153,  ante. 

s*-  Kerr's  Cye.  Code  Civ.  Proc,  pt.  ii,  tit.  iv,  ch.  ii,  §§  1183  et  seq. 

■"  So  intimated  in  March  v.  McCoy,  56  Cal.  85,  87  (1856).  See,  in 
this  connection,   Sidlinger  v.  Kerkow,   82  Cal.  42,   45,   22  Pac.   Rep.   932. 

Liens  upon  niackines,  which  are  personal  property,  are  provided 
for  under  other  laws:  See  Hendy  v.  Dinkerhoff,  57  Cal.  3,  40  Am. 
Rep.  107;  such  as  the  threshing-machine  act,  March  12,  1885  (Stats. 
1885,  p.  109),  and  the  general  common-law  liens  dependent  upon  pos- 
session, which  have  their  enunciation  in  §§  3049,  3051,  and  3052,  Kerr's 
Cye.  Civ.  Code,  and  notes.  See  also  Jordan  v.  Myres,  126  Cal.  565,  566, 
58  Pac.  Rep.  1061. 

\Vashiu]u;ton.  See  Vendome  T.  B.  Co.  v.  Schettler,  2  Wash.  457,  27 
Pac.  Rep.  76. 

^*  See  Donahue  v.  Cromartie,  21  Cal.  80,  and  Hinckley  v.  Field's  B. 
&  C.  Co.,  91  Cal.  136,  27  Pac.  Rep.  594. 

Macliinery  furnished  as  a  material-man:  Roebling  Sons  Co.  v. 
Humboldt  E.  L.  &  P.  Co.,  112  Cal.  288,  290,  44  Pac.  Rep.  568.  See 
Kennedy  L.  &  O.  Co.  v.  New  Albany  W.  W.,  62  Ind.  71. 

Pump  for  water-works:  Goss  v.  Helbing,  77  Cal.  190,  191,  19  Pac. 
Rep.   277. 

See   note    19   Am.   St.   Rep.    717. 

Things  affixed  to  other  works  come  within  the  rule  :  Donahue  v. 
Cromartie,  21  Cal.  80. 

In  MeGreary  v.  Osborne,  9  Cal.  119,  under  the  act  of  1856,  which 
did  not,  in  terms,  give  a  lien  upon  a  machine,  an  attempt  was  made 
to  enforce  a  lien  upon  a  machine  affixed  to  the  realty,  and  the  court 
seems  to  hold  that  the  machine  came  within  the  meaning  of  "  super- 
structure "  as  used  in  the  act.     See  §§  166  et  seq.,  ante. 

Well,  machinery  for:  See  Parke  and  Lacj'  Co.  v.  Inter  Nos  O.  &  D. 
Co.,   147  Cal.  490,  492,   82   Pac.   Rep.   51. 

.Xrixona.  A  smelter  is  a  "mill"  or  "manufactory,"  within  the 
meaning  of  §2278,  Rev.  Stats.;  McAllister  v.  Benson  M.  &  S.  Co.,  2 
Anz.   350,    16   Pac.   Rep.    271. 

See  also  authorities   in   note    19,    this   note. 


§§  381, 182  mechanics'  liens.  144 

§  181.  Same.  Railroad.  A  railroad  is  one  of  the  struc- 
tures enumerated  in  section  eleven  hundred  and  eighty- 
three,^^  and  much  difficulty  has  been  experienced  in  deter- 
mining the  extent  of  liens  on  such  structures;  a  matter 
which  will  be  more  fully  developed  at  another  place.*" 

§  182.  Mining  claims,  and  real  property  worked  as  a 
mine.  Second  clause  of  statute.  The  second  clause  of  sec- 
tion eleven  hundred  and  eighty-three  is  not  restricted  in  its 
operation  to  mines  of  ore.*^ 

3»  Bringham  v.   Knox,   127  Cal.   40,   59  Pac.   Rep.   198. 

See  notes  7  Am.  &  Eng.  Ann.  Cas.  269-272,  8  L.  R.  A.  700. 

Hawaii.  A  portion  of  a  railroad,  and  not  the  whole  railroad,  held 
to  be  a  "structure":  Hackfeld  v.  Hilo  R.  Co.,  14  Hawn.  448,  455. 

Oregon.  Lien  on  railroad,  under  Laws  18S9,  p.  75:  See  Coleman 
V.  Oregonian  R.  Co.,  25  Oreg.  286,  35  Pac.  Rep.  656. 

Under  Laws  1885,  p.  13,  railroad  was  included  under  the  term 
"other  structures":  Bau  v.  Columbia  S.  R.  Co.,  117  Fed  Rep.  21,  30, 
54  C.  C.  A.  407,  reversing  s.  c.  109  Fed.  Rep.  499. 

Act  of  1S89.  Considering  the  peculiar  provisions  of  the  act  of 
1889,  the  most  obvious  reason  for  its  passage  is  that  the  legislature 
thereby  intended  to  take  the  subject  of  claims  against  railway  cor- 
porations for  materials  and  labor  furnished  out  of  tlie  operation  of 
the  general  lien  law  of  1885,  and  put  it  under  this  special  act,  which 
does  not  require  any  notice  of  the  claim  to  be  filed  with  any  clerk  or 
other  officer,  and  provides  a  special  proceeding,  in  which  all  such 
claims   must   be   enforced   as   in   one   suit. 

Railway  is  a  structure:  Giant  Powder  Co.  v.  Oregon  Pac.  R.  Co., 
42  Fed.  Rep.  470,  472,  8  L.  R.  A.  700,  di-stiuguislied  in  Pennsylvania  S. 
Co.  v.  J.  E.  Potts  S.  &  L.  Co.,  63  Fed.  Rep.  11,  11  C.  C.  A.  11,  22  U.  S. 
App.    537. 

AVashington.  Under  §  1^57,  Code  of  1881,  which  enumerated  as 
objects  "  railroads "  and  "  any  other  structure,"  it  was  held  that 
there  was  no  lien  upon  a  street-railway,  where  the  owner  has  no 
interest  in  the  land  over  which  it  is  laid,  but  a  mere  license,  as  the 
street-railway  company  owns  the  structure  laid  by  it  on  the  higliway 
and  a  iranchise  to  collect  fares,  but  such  license  is  not  a  distinct 
easement,  and  hence  such  railway  is  not  a  "  structure,"  there  being 
no  lien  upon  a  structure  where  there  is  none  upon  the  land: 
Kellogg  v.  Littell  &  S.  Mfg.  Co.,  1  Wash.  407,  25  Pac.  Rep.  461; 
and  a  distinction  was  drawn  between  "  street-railways  "  and  "  steam- 
railroads  "  in  this  respect:  Front  Street  C.  R.  Co.  v.  Johnson,  2  Wash. 
112.  25  Pac.  Rep.  1084,  11  L.  R.  A.  693:  Pacific  R.  M.  Co.  v.  James 
Street  Consol.  Co.,  68  Fed.  Rep.  966,  16  C.  C.  A.  68,  29  U.  S.  App.  698. 
But  see  New  England  Engineer<jag  Co.  v.  Oakwood  Street  R.  Co., 
75  Fed.  Rep.  162  (Ohio  C.  C).  See  also  Laidlaw  v.  Portland  V.  & 
Y.  R.  Co.,  42  Wash.  292,  84  Pac.  Rep.  855. 

*»  See  "Extent  of  Lien,'    §§438  et  seq.,  post. 

"  Berentz  v.  Belmont  O.  M.  Co.,  148  Cal.  577,  84  Pac.  Rep.  47,  113 
Am.  St.   Rep.   308,   reversing  s.  c.    (Cal.  App.)    84  Pac.  Rep.   45. 

Xevada.  No  lien  on  mine  or  power  plant,  unconnected  with  mill, 
for  work  on  mill:  Salt  Lake  Hardware  Co.  v.  Chainman  M.  &  E.  Co., 
137    Fed.    Rep.    632. 


145  OK    WHAT    LABOR    MUST    BE    DONE.  §  182 

The  term  "  mining  claim  "  has  always  been  applied  to  the 
portion  of  the  mineral  land  to  which  the  right  of  exclusive 
possession  and  enjoyment  by  private  persons  has  been 
asserted  by  aetnal  occupation  or  by  compliance  with  the 
local  mining  laws,  rules,  usages,  and  customs/-  It  is  that 
portion  of  the  mineral  land  which  a  miner,  for  mining  pur- 
poses, takes  up  and  holds  in  accordance  with  the  mining 
law.-'^ 

Land,  the  title  to  which  is  held  under  Spanish  or  Mexican 
grant,  altliougli  mineral  in  character,  is  not  a  "  mining 
claim,"  and,  before  the  amendment  of  1903,  it  was  held  that 
the  mechanic's-lien  law  had  no  application  to  labor  on  mines 
in  such  grants.**    And,  likewise, 

Oregon.  A  mine,  stamp-mill,  and  a  tramway  from  the  mill  to  the 
mine,  do  not,  under  Hill's  Ann.  Laws,  §  3669,  constitute  such  an  en- 
tirety as  to  render  a-  lien  for  material  used  in  erecting  the  mill  and 
in  constructing  the  tramway  void  because  such  lien  was  not  filed 
against  the  mine  also  :  Watson  v.  Noonday  M.  Co.,  37  Greg.  287,  60 
Pac.    Rep.    994. 

In  California,  rule  is  otherwise:  See  authorities,  note  22,  this 
chapter. 

"  Williams  v.  Santa  Clara  M.  Assoc,  66  Cal.  193,  198,  5  Pac.  Rep.  85, 
4  West  Coast  Rep.  616;  Morse  v.  De  Ardo,  107  Cal.  622,  624,  40  Pac. 
Rep.  1018. 

Does  "mining  claim"  include  deeded  landf  Whetlier  "mining 
claim  "  to  be  construed  as  in  any  case  applying  to  land  owned  in  fee- 
simple,  referred  to,  but  not  decided  :  Berentz  v.  Belmont  O.  M.  Co. 
(Cal.  App.),  84  Pac.  Rep.  45,  judgment  reversed  148  Cal.  577,  84  Pac. 
Rep.  47,  113  Am.  St.  Rep.  308. 

Idaho.  The  milling  of  ore  in  a  mill  on  the  mine  is  work  on  the 
mine,  and  not  on  the  ore,  within  the  meaning  of  the  law:  Thompson 
V.  Wise  Boy  M.  &  M.  Co.,  9  Idaho  363,  74  Pac.  Rep.   958. 

Oregron.  The  provision  of  the  statute  giving  a  lien  on  mining 
claims  (Laws  1891,  p.  76)  applies  to  claims  in  which  minerals  have 
not,  as  well  as  to  those  on  which  minerals  have,  been  found: 
Williams  v.  Toledo  C.  Co.,  25  Oreg.  426,  36  Pac.  Rep.  159,  42  Am.  St. 
Rep.    799. 

*'■  Morse  v.  De  Ardo,  107  Cal.  622,  623,  40  Pac.  Rep.  1018;  Johnson  v. 
California  L.  Co.,  127  Cal.  283,  287,  59  Pac.  Rep.  595.  See  Marble  Co.  v. 
Railroad  Co.,  25  Land  Dec.  233;  Aldritt  v.  Railroad  Co.,  25  Land  Dec. 
349. 

See  Martin's  Mining  La^v,  passim. 

"  Williams  v.  Santa  Clara  M.  Assoc,  66  Cal.  193,  198,  5  Pac.  Rep. 
85.  4  West  Coast  Rep.  616.  See  Morse  v.  De  Ardo,  107  Cal.  622,  624,  40 
Pac  Rep.  1018.  In  the  case  last  cited  it  was  said:  "In  Bewick  v. 
Muir,  83  Cal.  368,  372,  23  Pac.  Rep.  383,  390,  which  respondent  con- 
tends modifies  and  explains  the  law  declared  in  Williams  v.  Santr 
Clara  Mining  Assoc,  supra,  this  court  was  called  upon  to  decide 
whether  the  phrase  'mining  claim"  of  the  lien  law  included  mining 
claims  after  the  possessory  right  or  claim  had  matured  into  a  perfect 
title  by  the  issuance  of  a  mineral  patent  from  the  United  States; 
and  this  was  all  it  was  called  upon  to  decide.  This  court  said  :  'The 
Mech.  Liens — 10 


§  182  mechanics'  liens.  146 

Land  held  under  an  agricultural  patent  is  not  a  "  mining 
I'laini."'  within  the  meaning  of  the  statute  ^•"'  before  its  amend- 
ment in  19();5,  and  no  lien  was  given  for  work  upon  a  mine 
in  the  same.-*"     The   amendment  of  1903  to  section  eleven 

words  "  mining-  claim,"  as  used  in  the  law,  have  no  reference  to  the 
different  stages  in  the  acquisition  of  the  government  title.  In  our 
opinion,  it  includes  all  mines,  whether  the  title  is  inchoate,  as  in  the 
case  of  a  mining  claim  in  its  strict  sense,  or  perfect,  as  in  the  case 
of  a  fee-simple  title.'  Reference  to  the  record  in  this  last-named  case 
discloses  not  only  that  the  complaint  pleaded  that  all  the  mining  land 
and  ground  described  therein  were  mining  claims,  but  that  the  court 
in  its  findings  so  declared.  In  the  case  at  bar  there  is  no  such  find- 
ing. It  follows,  therefore,  tlmt  the  further  expressions  of  the  court 
in  Bewick  v.  Muir,  supra,  were  not  only  unnecessary  to  the  decision, 
but  were  addressed  to  a  condition  neither  involved  in  nor  presented 
by  the  facts  of  the  case.  .  .  .  We  must  turn,  therefore,  to  Williams  v 
Santa  Clara  Mining  Assoc,  supra,  as  containing  tlie  last  authoritative 
expression  of  the  court  upon  the  question,  and  we  deem  its  reasoning 
to  be  unassailable  and  its  conclusion  determinative  of  the  case  at 
bar."  See  also  Malone  v.  Big  Flat  M.  Co.,  76  Cal.  578,  583,  18  Pac. 
Rep.   772. 

*5  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1183. 

«  Morse  v.  De  Ardo,  107  Cal.  622,  623,  40  Pac.  Rep.  1018.  This 
decision,  however,  cites  and  quotes  from  Helm  v.  Chapman,  66  Cal. 
291,  5  Pac.  Rep.  352,  which  depended  upon  §  1183,  Cal.  Code  Civ.  Proc. 
before  it  was  amended  in  1880.  At  that  time  "mining  claims"  were 
enumerated  among  "  structures,"  and  it  was  held  that  "  without 
uoing  violence  to  the  received  meaning  of  language,  a  mine  or  pit 
sunk  within  a  mining  claim  may  be  called  a  "  structure."  After  the 
amendment,  this  case  was  cited  on  the  same  point,  and  it  was  held 
that  a  "mine  is  a  'structure,'  within  the  meaning  of  the  statute": 
Silvester  v.  Coe  Quartz  M.  Co.,  80  Cal.  510,  512,  22  Pac.  Rep.  217; 
Williams  v.  Mountaineer  G.  M.  Co.,  102  Cal.  134,  142,  34  Pac.  Rep.  702, 
36   Pac.   Rep.    388. 

It  was  said  in  the  last-mentioned  case  (p.  141)  that:  "In  Helm  v. 
Chapman,  66  Cal.  291,  5  Pac.  Rep.  352,«5  West  Coast  Rep.  127,  it  was 
said  a  mine  or  pit  may  be  called  a  structure,  and  '§1183  does 
not,  it  is  true,  provide  for  a  lien  upon  mines,  but  upon  "  mining 
claims"'";  and  also  (p.  139)':  "The  procedure  provided  for  acquir- 
ing liens  upon  '  structures '  are  not,  in  all  respects,  applicable  to 
those  claiming  liens  upon  mining  claims.  They  cannot  all  date  back 
to  the  commencement  of  the  work.  On  a  mine  the  work  is  always 
going  on;  may  have  commenced  before  the  laborers  were  born, 
and  may  continue  indefinitely.  .  .  .  The  code  does  not  seem  to  have 
provided  for  all  the  cases  which  may  arise  in  regard  to  liens  upon 
mining  claims.  We  can  only  follow  the  procedure  so  far  as  applicable. 
For  that  purpose,  the  mining  claim  must  stand  in  the  place  of  the 
structure  as  the  property  to  be  charged  with  the  lien.  .  .  .  There  can 
be  no  harm  in  so  speaking  of  it,  if  we  do  not  lose  sight  of  essenti^il 
differences,  when  it  is  necessary  to  discriminate."  See  also  California 
P.  W.  V.  Blue  Tent  Consol.  H.  G.  M.  Co.  (Cal.),  22  Pac.  Rep.  391;  Pacific 
Rolling  M.  Co.  V.  Bear  Valley  Irr.  Co.,  120  Cal.  94,  98,  52  Pac.  Rep.  136. 
65  Am.  St.  Rep.  158.  See  Big  Blackfoot  M.  Co.  v.  Bluebird  M.  Co.,  19 
Mont.  454,  48  Pac.  Rep.  778;  Alvord  v.  Hendrie,  2  Mont.  115. 

In  Bewick  v.  Muir,  83  Cal.  368,  372,  23  Pac.  Rep.  389,  390  (see 
preceding  note),  it  was  also  said:  "The  decision  in  Williams  v.  Santa 
Clara  M.   Assoc,   66   Cal.   193,    5   Pac.   Rep.   B5,   4   West   Coast   Rep.    616, 


147  ON    WHAT    LABOR    MUST    BE    DONE.  §§  183,  184 

hundred  and  eighty-three  was  evidently  intended  to  extend 
the  right  of  lien  to  these  cases. 

Oil-well.  A  tract  of  eighty  acres  with  a  well  upon  it  for 
extracting  mineral  oil  is  a  mining  claim  or  mine.*^ 

§  183.  Definition  of  "  mine."  It  has  been  held  that  by  the 
word  "  mine/'  as  used  in  the  description  in  a  claim  of  lien 
on  the  "  Red  Cloud  ^line,"  was  not  meant  a  subterranean 
cavity  or  passage,  especially  a  pit  or  excavation  in  the 
earth  from  which  metallic  ores  or  other  mineral  substances 
are  taken  bj-  digging,  as  that  word  is  defined  by  Webster, 
but  the  whole  claim  or  body  of  mining-ground.*® 

§  184.     Grading  and   street-work   under   code   provision. 

The  work  referred  to  in  section  eleven  hundred  and  ninety- 
one  of  the  code  *"  must  be  done  upon  the  objects  enumerated, 
in  an  incorporated  city  or  town,''"  and  if  done  outside  of 
such  incorporated  city  or  town,  does  not  fall  within  this 
section."^  Under  this  section  it  is  to  be  noted  that  the  object 
upon  which  the  Avork  must  be  done  is  by  no  means  neces- 
sarily a  part  of  the  property  upon  which  the  lien  is  given. 
Thus  a  lien  is  given  upon  the  lot  for  work  done  upon  the 
street  in  front  of  or  adjoining  the  same. 

A  sidewalk,  being  one  of  the  objects  enumerated  in  section 
eleven  hundred  and  ninety-one  of  the  Code  of  Civil  Proce- 

is  not  In  conflict  witli  tlii.s  [namely,  that  a  lien  might  be  had  upon 
mines  as  well  as  upon  mining  claims,  as  quoted  above].  Although 
there  are  some  expressions  in  the  opinion  in  that  case  which  seem 
to  countenance  the  opposite  view,  we  think  that  what  was  decided 
was  merely  that  the  adjacent  land,  which  the  defendant  held  under 
a  Spanish  grant,  was  not  mineral  land,  or  appurtenant  thereto. 
Such  land  was  therefore  not  a  mine  or  a  mining  claim,  in  any  sense, 
and  consequently  was  not  liable  as  such." 

Montana.     See   California   paragraph,    this   note. 

"  Berentz  v.  Belmont  O.  Co.,  148  Cal.  577,  582,  84  Pac.  Rep.  47,  113 
Am.  St.   Rep.   308,   reversing  s.   c.    (Cal.  App.)    84  Pac.   Rep.   45. 

See  ^lartiu'M  Mining  I-aw,  passim. 

•'■■'  Tredennick  v.  Red  Cloud  Consol.  M.  Co.,  72  Cal.  78,  81,  13  Pac.  Rep. 
152.  See  also  Castagnetto  v.  Coppertown  M.  &  S.  Co.,  146  Cal.  329,  333, 
80  Pac.  Rep.  74. 

See  Martin's   Mining?   Law,   §  1,   and   passim. 

<"  Kerr's  Cye.  Code  <iv.  Proc,  §  1191. 

•■»  Durrell  v.  Dooner,  119  Cal.  411,  51  Pac.  Rep.  628;  Bryan  v.  Abbott, 
131    Cal.    222,    63    Pac.    Rep.    363. 

"  Durrell    v.   Dooner,    119   Cal.   411,    51    Pac.    Rep.    628. 


§§  185, 186  mechanics'  liens.  148 

dure,  has  been  held  to  be  a  part  of  the  building,  under  cer- 
tain cireumstanecs/'- 

A  system  of  sewers  is  an  improvement  of  lots  within  the 
sewer  district,  and,  under  a  private  contract  by  the  lot- 
owners,  duly  made,  to  pay  in  proportion  to  frontage,  the 
contractor  has  a  lien,  under  this  section,  upon  each  lot  for 
the  price  which  the  owner  has  agreed  to  pay,  both  for  the 
portion  of  the  sewer  which  is  part  of  the  general  system,  and 
for  the  branch  sewers. ^^ 

§  185.  Fixtures.-'*  In  general.  Fixtures  may  be  regarded 
in  two  aspects :  1.  As  a  thing  over  which  the  lien  on  the  realty 
may  extend,  as  being  a  part  thereof,  whether  the  work  was 
done  on,  or  in  the  construction  of,  such  fixture,  or  not ;  and 
2.  As  indicating  the  character  of  the  work  which  results 
in  the  accomplished  object,  for  work  on  which  the  lien 
is  given.  The  first  head  will  be  more  fully  considered  later, 
under  the  chapter  relating  to  the  extent  of  lien,  where  the 
rights  of  other  parties  in  this  connection  are  dwelt  upon. 

§  186.  Same.  Question  of  fact.  Building.  Whether,  in 
any  case,  buildings  which  are  placed  upon  land  become  fix- 
tures is  a  question  of  fact,  to  be  determined  upon  the  evi- 
dence of  that  particular  case.  The  mere  erection  of  a  build- 
ing upon  land  does  not  necessarily  make  it  a  fixture ;  and 
whether  it  be  a  fixture  depends  upon  various  circumstances 
and  relations  connected  with  its  being  placed  upon  the 
land.^^ 

•■-  McClain  v.  Hutton,  131  Cal.  132,  136.  63  Pac.  Rep.  182,  61  Pac. 
Rep.    273. 

See  ••  Extent  of  Lien,"  §§  438  et  seq.,  post. 

In  Santa  Monica  L.  &  M.  Co.  v.  Hege,  119  Cal.  376,  51  Pac.  Rep.  555, 
it  was  said  that  presumptively  a  sidewalk  would  not  be  a.  part  of 
the    building. 

Oregon.  Harrisburg  L.  Co.  v.  Washburn,  29  Oreg.  150,  164,  44  Pac. 
Rep.  390.  All  the  provisions  of  the  act  "  respecting  the  securing  and 
enforcing"  of  the  liens  are  made  applicable  to  similar  work:  Pilz  v. 
Killingsworth,  20  Oreg.  432,  26  Pac.  Rep.  305. 

=•'  Williams  v.  Rowell,  145  Cal.  259,  261,  78  Pac.  Rep.  725  (Shaw  and 
Angellotti,  JJ.,  dissenting). 

^*  See  also  "  :Machinery,"  §  180,  ante. 

As  to  fixtures  generally,  see  very  full  note,  Kerr'j*  Cyc.  Civ.  Code. 
§  660. 

«  Miller  v.  Waddingham,  91  Cal.  377,  379,  27  Pac.  Rep.  750,  13 
L.   R.  A.    680;    Dietz   v.   Mission   Transfer.  Co.,    95   Cal.   92,    102,    30   Pac. 


149  ON    WHAT    LABOR    MUST    BE    DONE.  §  187 

§  187.  Same.  Principles  of  determination.  The  character 
of  the  structure  in  relation  to  its  permanency,  and  the  intent 
of  the  owner  in  relation  to  its  future  use,  are  controlling 
factors  in  determining  the  question  as  to  whether  or  not  it 
is  a  fixture.^"  So,  too,  the  relation  existing  between  the  parties 
is  an  important  element  in  the  determination,"  and  secret 
agreements  between  landlord  and  tenant  as  to  the  future  use 
or  demolition  of  the  fixture  will  not  be  regarded  as  against 
a  lien  claimant  who  relies  upon  the  permanent  manner  of 
construction  of  the  fixture.^*  But  section  eleven  hundred 
and  eighty-three  contemi>lates  that  the  lien  shall  attach  to 
the  property  of  the  owner,  not  to  the  property  of  some 
other  person,  and  the  intention  of  the  parties,  as  heretofore 
stated,  will,  in  general,  be  regarded,  as  far  as  the  rights  of 
claimants  are  concerned. ^^  In  some  of  the  jurisdictions 
herein  considered,  the  improvement  constructed  is  by  the 
statute  regarded  as  a  severable  fixture,  at  least  for  certain 

Rep.  380  (concurring  opinion);  Jordan  v.  Myres,  126  Cal.  565,  569,  58 
Pac.   Rep.    1061. 

luteutiou  of  parties  determines  :  See  Fratt  v.  Whittier,  58  Cal. 
126,  41  Am.  Rep.  251;  Lavenson  v.  Standard  S.  Co.,  80  Cal.  245,  22 
Pac.   Rep.   184.   13  Am.  St.   Rep.   147. 

See  also  notes  39  Am.  St.  Rep.  172,  3  L.  R.  A.  34. 

Idaho.  Mill  as  fixture  to  mine:  See  Thompson  v.  Wise  Boy  M.  & 
M.  Co.,   9  Idaho  363,   74   Pac.   Rep.   958,   960. 

Utah.  Sanford  v.  Kunkel,  85  Pac.  Rep.  363,  1012  (building-  as  fix- 
ture). 

<>«  Stevenson  v.  Woodward,  3  Cal.  App.  754,  86  Pac.  Rep.  990;  Jordan 
V.  Myres,  126  Cal.  565,   567,   58  Pac.   Rep.   1061. 

"  Stevenson  v.  Woodward,  3  Cal.  App.  754,  86  Pac.  Rep.  990. 

Between   parties   other   than   claimants: 

Colorado.  Machinery  placed  by  lessee  on  mine  a  trade-fixture, 
which  is  removable:  Updegraff  v.  Lesem,  15  Colo.  App.  297,  62  Pac! 
Rep.  342.  And  see  Royce  v.  Latshaw,  15  Colo.  420,  62  Pac.  Rep.  627; 
Ross   V.   Campbell,    9    Colo.   App.    38,    47    Pac.    Rep.    465. 

Idaho.  Bing-ham  County  A.  Assoc,  v.  Rogers,  7  Idaho  63,  59  Pac. 
Rep.   931    (relation  of  parties  to  be  considered). 

Oregon.  Alberson  v.  Elk  Creek  G.  M.  Co.,  39  Oreg.  552,  65  Pac. 
Rep.   978    (personalty   placed  on  mine). 

Olilahoina.  Bridges  v.  Thomas,  8  Okl.  620,  58  Pac.  Rep.  955  (the 
presumption  being  that  a  building  is  part  of  the  land,  and  real 
property). 

WaMhingrton.  Hall  v.  Law  Guarantee  &  T.  Soc,  22  Wash.  305, 
60  Pac.  Rep.  643  (between  mortgager  and  mortgagee);  Neufelder  v.' 
Third  Street  &  S.  R.,  23  Wash.  470,  63  Pac.  Rep.  197,  83  Am.  St.  Rep. 
831,  53  L.  R.  A.  600  (machinery  in  a  planing-mill) ;  Philadelphia  M. 
&  T.  Co.  V.  Miller,  20  Wash.  607,  56  Pac.  Rep.  382,  72  Am.  St.  Rep. 
138,   44  L.  R.   A.   559    (water-heater,   bath-tub,   mantels). 

^*  Stevenson  v.  Woodward,  3  Cal.  App.   754,   86  Pac.  Rep.  990. 

"  Jordan  v.  Myres,  126  Cal.  565,  567,  58  Pac.  Rep.  1061. 


§187 


IIECHANICS'    LIENS.  150 


purposes  of  the  raechanic's-lien  law.     But  in  California  the 
improvement  is,  in  general,  deemed  a  fixture  to  the  land."" 

«»  In  West  Coast  L,.  Co.  v.  Apfield,  86  Cal.  335,  338,  24  Pac.  Rep. 
993,  it  was  said:  "By  its  [the  lease's]  terms,  he  [the  owner  of  the 
fee]  has  demised  aU  that  there  is  of  tlie  '  real  property,'  with  its 
appurtenances.  That  includes  not  only  the  land,  but  everything 
that  is  afflxed,  incidental,  or  appurtenant  to  the  land:  Civ.  Code, 
§  658.  That  which  is  afflxed  includes  that  which  is  '  imbedded  into 
it,  as  in  the  case  of  walls,  or  permanently  resting  upon  it,  as  in  the 
case  of  'buildings':  Civ.  Code,  §660.  And  that  is  deemed  incidental 
or  appurtenant  to  land  which  is  by  right  used  with  the  land  for 
its  benefit:  Civ.  Code,  §  662.  ...  It  was  a  large  and  substantial 
structure,  not  only  apparently  'permanently  resting  upon'  the  lot, 
but  the  proof  shows  that  it  was  resting  upon  mudsills  '  imbedded  in 
it,'  and  also  that,  when  completed,  it  was  '  used  with  the  land.'  To 
all  appearance,  the  lot  and  building  was  a  single  entity  of  '  real 
property.'  Again,  as  we  have  before  said,  tliere  was  neitlier  a 
reservation  of  right  nor  a  grant  of  right  to  remove  any  buildings; 
but,  on  the  contrary,  there  was  an  express  covenant  to  surrender,  at 
the  expiration  of  the  term,  '  in  as  good  state  and  condition  as 
reasonable  use  and  wear  thereof  will  permit,  damage  by  the  elements 
alone  excepted.'  This  at  least  was  an  express  provision  negativing 
the  right  to  remove.  '  A  tenant  for  years  or  at  will  has  no  other 
rights  to  the  property  than  such  as  are  given  to  him  by  the  agree- 
ment or  instrument  by  which  his  tenancy  is  acquired,  or  by  the  last 
section':  Civ.  Code,  §820.  The  preceding  section,  being  the  one 
referred  to  as  'the  last  section,'  gives  him  the  right  to  'occupy 
the  buildings,  take  the  annual  products  of  the  soil,  work  mines  and 
quarries  open  at  the  commencement  of  his  tenancy.'  Nowhere  does 
the  code  give  the  right  to  remove  buildings,  unless  that  right  is  ex- 
pressly granted  or  reserved  in  the  instrument  creating  the  tenancy,  or 
the  buildings  are  such,  or  so  erected,  as  not  to  partake  of  the  realty. 
'  When  a  person  affixes  his  property  to  the  land  of  another,  without 
an  agreement  permitting  him  to  renaove  it,  the  thing  affixed,  except 
as  provided  in  §  1019,  belongs  to  the  owner  of  the  land,  unless  he 
chooses  to  require  the  former  to  remove  it':  Civ.  Code,  §1013.  'A 
tenant  may  remove  from  the  demised  premises,  any  time  during  the 
continuance  of  his  term,  anything  affixed  thereto  for  purposes  of 
trade,  manufacture,  or  domestic  use,  if  the  removal  can  be  effected 
without  injury  to  the  premises,  unless  the  thing  has,  by  the  manner 
in  which  it  is  affixed,  become  an  integral  part  of  the  premises': 
Civ.  Code,  §  1019.  This  would  hardly  autliorize  the  removal  of  a 
four-story  building  erected  to  be  used  for  stores  and  as  a  lodging  and 
boarding  house."  See  also  Lavenson  v.  Standard  Soap  Co.,  80  Cal. 
245,  22  Pac.  Rep.  184,  13  Am.  St.  Rep.  147. 

Montana.  See  Stenberg  v.  Liennemann,  20  Mont.  457,  52  Pac. 
Rep.    84,    63    Am.    St.    Rep.    636. 

Orevron.  "The  weight  of  modern  authority,  keeping  in  mind  the 
exceptions  as  to  constructive  annexation  admitted  by  all  the  authori- 
ties to  exist,  seems  to  establish  the  doctrine  that  the  true  criterion 
of  an  irremovable  fixture  consists  in  the  united  application  of  several 
tests:  1.  Real  or  constructive  annexation  of  the  article  in  question 
to  the  realty.  2.  Appropriation  or  adaptation  to  the  use  or  purpose 
of  that  part  of  the  realty  with  which  it  is  connected.  3.  The  inten- 
tion of  the  party  making  the  annexation  to  make  the  article  a 
permanent  accession  to  the  freehold:  this  intention  being  infei-red 
from   the   nature   of   the  article  affixed,    the   relation   and   situation   of 


151  ox    WHAT    LABOR    MUST    BE    DONE.  §§  188,  189 

§  188.  Lien  primarily  on  structure.  It  has  been  seen, 
moreover,  that  the  lien,  under  the  California  statute,  is  pri- 
marily upon  the  structure,  and  not  upon  the  land,  and  that 
the  court,  under  certain  circumstances,  when  the  land  is  not 
affected  by  the  lien,  may  order  the  structure  to  be  severed 
from  the  realty,  and  sold  apart  from  the  same ;  the  court  say- 
ing, "  When  the  building  is  destroyed  by  fire  before  comple- 
tion, there  can  be  no  lien  aganist  the  land  on  which  it 
stood."  ^^ 

§  189.  Work  upon  fixtures,  how  deemed.  Work  done 
upon  fixtures  is  deemed  to  be  done  upon  the  real  property  to 
which  the  same  are  alfixed.^- 

An  ice-box  so  constructed  that  it  could  not  be  removed 
from  the  building  without  tearing  it  to  pieces,  and  built  into 
the  warehouse  as  a  part  thereof,  and  securely  attached  so 

the  party  making-  the  annexation,  and  the  policy  of  the  law  in  rela- 
tion thereto,  the  structure  and  mode  of  the  annexation,  and  the  pur- 
pose or  use  for  whicli  the  annexation  has  been  made":  Helm  v. 
Gilroy,  20  Oreg.  517,  26  Pac.  Rep.  851.  Under  these  principles  it 
was  held  that,  as  between  the  claimant  and  the  lessee,  wainscoting- 
attached  with  screws  to  strips  nailed  to  the  wall  of  a  room  to  be 
used  as  a  saloon  by  a  lessee,  and  oak  veneering-  nailed  to  the  walls, 
etc.,  are  not  removable  trade-fixtures,  but  form  alterations  of  the 
building,  and  the  lessee's  interest  therein  was  bound  by  a  mechanic's 
lien  for  affixing  the  same:  Matthiesen  v.  Arata,  32  Oreg.  342,  50 
Pac.  Rep.  1015,  67  Am.  St.  Rep.  535.  See,  as  to  rule,  Helm  v.  Gilroy, 
20  Oreg.  517,  26  Pac.  Rep.  851;  Honeyman  v.  Thomas,  25  Oreg.  539, 
36    Pac.    Rep.    636. 

"  Humboldt  L.  M.  Co.  v.  Crisp,  146  Cal.  686,  689,  2  Am.  &  Eng. 
Ann.  Cas.  811,  81  Pac.  Rep.  30,  106  Am.  St.  Rep.  75. 

See  §  16,  ante. 

Lien  upon  liiiilding  distinct  from  land:  See  notes  2  Am.  &  Eng. 
Ann.  Cas.  689-691,  62  L.  R.  A.  369,  383. 

A|i|>urtenanoeiii:    Note  15  L.  R.  A.  653. 

New  Mexico.  See  Armijo  v.  Mountain  E.  Co.,  11  N.  M.  235,  67  Pac. 
Rep.    726. 

I  tail.     See  Sanford  v.  Kunkel,  85  Pac.  Rep.  363,   1012. 

"'  Mandary  v.  Smartt,  1  Cal.  Ap"p.  498,  500,   82  Pac.  Rep.   561. 

Am  to  counters,  sideboards,  siielving,  ice-box,  see  Sidlinger  V. 
Kerkow,  82  Cal.  42,  45,  22  l^ac.  Rep.  932. 

See  "  Presumptions  on  Appeal,"  §  974,  post,  and  Bianchi  v.  Hughes, 
124  Cal.   24,   56  Pac.   Rep.    610. 

See  also   "Extent  of  Lien,"   §§438  et  seq. ;   "Machinery,"  §445,   post. 

Doubted  whetiier  a  dance-hall,  consisting  of  a  covered  structure 
resting  on  sills,  partly  weather-boarded,  open  sides,  and  without  doors 
or  windows,  is  a  fixture,  within  the  meaning  of  the  mechanic's-lien 
law.  so  as  to  allow  a  lien  for  the  work  of  construction  thereof: 
Lotliian  v.  Wood,  55  Cal.  159,  163.  See  Evans  v.  Judson,  120  Cal. 
282,    285,    52    Pac.    Rep.    585. 


§§  190, 191  mechanics'  liens.  152 

that  the  same  could  not  be  removed  without  injury  thereto, 
nor  without  injury  to  the  warehouse,  was  held  to  be  a  part 
of  the  building,  and  sufficient  to  support  a  lien.^^ 

§  190.     The   severance    of   buildings    from   the   freehold 

proprio  vigore  changes  the  character  of  the  houses  from 
real  to  personal  property,  irrespective  of  the  means  by  which 
it  was  accomplished.*'*  Where  a  house  is  moved  to  a  lot,  and, 
by  agreement,  is  to  remain  on  the  lot  only  a  few  days,  and 
rests  on  mudsills  on  the  top  of  the  ground,  the  house  is  per- 
sonal property,  and  a  lien  for  the  material  with  which  the 
house  was  built  cannot  be  enforced  against  the  land  upon 
which  it  thus  temporarily  rested.*'^ 

§  191.  Work  on  fixtures  in  mine.  In  California,  a  dis- 
tinction must  always  be  observed  between  the  fixtures  on  a 
mining  claim,  under  section  six  hundred  and  sixty-one  of  the 
Civil  Code,  which  would  be  personal  property,  and  fixtures 

New  Mexico.  Post  v.  Miles,  7  N.  M.  317,  34  Pac.  Rep.  586:  "The 
statute  does  not  require,  as  a  condition  upon  which  the  lien  on  the 
realty  is  made  to  depend,  that  the  improvements  should  become  a 
part  thereof.  Ihe  lien  attaches  to  the  "  structure,'  and  to  the  land 
upon  which  it  is  'constructed.'"  See  also  Mountain  E.  Co.  v.  Miles, 
9  N.  M.  512,  56  Pac.  Rep.  284,  286,  and  Post  v.  Fleming,  10  N.  M.  476,  62 
Pac.    Rep.    1087. 

Oregon.  See  Bank  of  Idaho  v.  Malheur  Co.,  30  Oreg.  420,  45  Pac. 
Rep.  781,  35  L.  R.  A.  141.  But  see  also  Patterson  v.  Gallagher,  25 
Oreg.   227,  35  Pac.  Rep.   454,   42   Am.  St.   Rep.   794. 

Washington.  Under  the  Code  of  ISSl,  cli.  cxxxviii,  no  lien  could 
be  obtained  upon  personal  property  unless  it  had  become  a  part  of 
the  land:  Schettler  v.  Vendome  Turkish  B.  Co.,  2  Wash.  457,  27  Pac. 
Rep.  76;  Kellogg  v.  Littell  &  S.  Mfg.  Co.,  1  Wash.  407,  25  Pac. 
Rep.  461  (there  being  no  express  provision  of  the  statute  allowing 
a  lien  upon  the  building  apart  from  the  land).  Both  of  these  cases 
are  explained  in  Post  v.  Miles,  7  N.  M.  317,  34  Pac.  Rep.  586.  See 
also  Front  Street  C.  R.  Co.  v.  Johnson,  2  Wash.  112,  25  Pac.  Rep. 
1084,    11    L.   R.   A.    693. 

Wj-onilng.  See  Fein  v.  Davis,  2  "^^yo.  118,  123  (1871),  as  to  enfor- 
cing a  lien  upon  the  building  as  separate  from  the  land. 

<=='  Stevenson  v.  Woodward,   3  Cal.  App.   754,   86  Pac.  Rep.  990. 

See    §  174,    ante. 

"  Stowell  V.  Waddingham,  100  Cal.  7,  34  Pac.  Rep.  436;  Buckout 
v.  Swift.  27  Cal.  433,  87  Am.  Dec.  90.  See  Moisant  v.  McPhee,  92  Cal. 
76,   28  Pac.   Rep.   46. 

«5  Fresno  L.  &  S.  Bank  v.  Husted  (Cal.,  June  17,  1897),  49  Pac. 
Rep.  195.  Whether  a  lien  could  be  enforced  against  the  house  as 
personal  property,  or  otherwise,  or  upon  the  lot  upon  which  it  was 
originally   constructed,   was   not   decided. 

Compare:    Stowell  v.  Waddingham,   100  Cal.   7.  34  Pac.  Rep.   436. 

New  Mexico.      See  Post  v.  Miles,   7  N.  M.-  317,  34  Pac.  Rep.   586. 


153  ON    WHAT    LABOR    MUST    BE    DONE.  §  192 

under  section  six  hundred  and  sixty.  Section  six  hundred  and 
sixty-one  of  said  code  provides:  "  Sluice-boxes,  flumes,  hose, 
pipes,  railway  tracks,  cars,  blacksmith-shops,  mills,  and  all 
other  machinery  or  tools  used  in  working  or  developing  a 
mine,  are  to  be  deemed  affixed  to  the  mine."  Under  this 
section,  work,  such  as  sharpening  picks  and  drills,  and  labor 
on  machinery,  such  as  iron  pipes,  "  giants,"  etc.,  used  in 
developing  a  mine,  while  so  used  upon  the  mine,  is  work 
upon  the  mine,  and  a  sufficient  basis  to  support  a  lien."*'  But 
the  machinery  and  tools  must  be  actually  used  in  the  work 
or  development  of  the  mine.*'^ 

§  192.  Public  property.*'*  Suits  may  be  brought  against 
the  state  in  such  manner  and  in  such  courts  as  shall  be 

86  Malone  v.  Big  Flat  G.  M.  Co.,  76  Cal.  578,  583,  18  Pac.  Rep.  772. 

«'  Hamilton  v.  Delhi  M.  Co.,  118  Cal.  148,  50  Pac.  Rep.  378.  See 
Jordan  v.  Myres,   126  Cal.  565,   567,   58  Pac.  Rep.  1061. 

Colorado.  The  intention  of  the  party  to  make  a  permanent  acces- 
sion to  the  freehold,  and  the  iise  to  which  the  article  is  to  be  applied, 
are  controlling  questions  in  determining  whether  it  is  a  fixture.  If 
it  constitutes  a  part  of  a  plant  of  machinery  necessary  to  the  suc- 
cessful operation  of  the  whole,  or  if  its  use  is  essential  to  the 
operation  of  some  part  of  the  machinery  which  is  physically  attached 
to  the  freehold,  then  it  may  in  many  cases  be  properly  termed  a 
fixture,  even  though  it  wholly  lacks  a  permanent  physical  attachment 
to  the  realty.  Each  case  is  one  of  mixed  law  and  fact.  Colorado 
statute  (Gen.  Stats.,  §2148)  very  liberal:  Gary  Hardware  Co.  v. 
McCarty,  10  Colo.  App.  200,  220,  50  Pac.  Rep.  744  (1889)  (a  number  of 
illustrations  are   given). 

Orej^on.  A  derrick  erected  by  a  tenant  in  a  quarry,  by  placing  a 
post  upright  in  a  socket  upon  the  ground,  with  guy-ropes  extending 
from  its  top  to  stakes  set  in  the  ground,  is  a  removable  trade-fixture, 
and  not  subject  to  lien:  Honeyman  v.  Thomas,  25  Greg.  539,  36  Pac. 
Rep.    636. 

«»  Public  buildings  and  works,  acts  concerning:  See  Henning's 
General  Laws,  pp.  1087-1095,  1099-1105;  County  Government  Act, 
Henning's  General  Laws,  pp.  189,  196  (§25,  subd.  8),  206  (§37); 
Kerr's  Cyc.  Pol.  Code,  §§  3233,  3234,  3244,  3245,  and  notes.  See  also 
McPherson  v.  San  Joaquin  Co.    (Cal.),   56  Pac.  Rep.  802. 

Public  works,  and  mechanics'  lien.s:  See  4  Current  Law,  1124, 
also  notes  35  L.  R.  A.   141,  and  27  Am.  Rep.   83. 

Contractor's  bond  on  public  work:  See  Union  S.  M.  Works  v. 
Dodge,  129  Cal.  390,  394.  62  Pac.  Rep.  41;  People's  L.  Co.  v.  Gillard, 
136  Cal.  55,  61,  68  Pac.  Rep.  576. 

Colorado.  Contractor's  bond  on  public  work:  People  v.  Dodge, 
11   Colo.   App.    177. 

Washington.  Contractor's  bond  on  public  work:  Crane  Co.  v. 
.<Etna  Indemnity  Co.  (Wash.),  86  Pac,  Rep.  849;  Ihrig  v.  Scott,  5 
Wash.  584,  32  Pac.  Rep.  466;  Maxon  v.  School  Dist.,  5  Wash.  142,  31 
Pac.    Rep.   462,   32    Pac.    Rep.    110. 

Gen.  Stats.,  §  2415,  wliicli  required  municipal  corporations  to  take 
a   bond    from    contractors    doing    work    or    making    improvements    for 


§  192  mechanics'  liens.  154 

directed  by  law/'"  Public  property  is  generally  exempt 
from  execution,'"  and  hence  a  lien  cannot  be  had  upon 
public  property  or  a  public  building  for  labor  per- 
formed thereon  or  materials  furnished  therefor,  in  the 
absence  of  express  statutory  allowance ;  and  the  expres- 
sions "  property,"  as  used  in  the  constitution,'^^  and  "  any 
building,"  in  the  statute,"  do  not  give  a  lien  upon  such 
public  property.  Thus  mechanics'  liens  cannot  be  acquired 
or  enforced  against  a  public-school  house, ^^  against  a 
county  building,  such  as  a  hall  of  records,^*  nor  against  a 
monument  erected  in  a  public  park  of  a  municipality  by 
private  subscription,  where  it  becomes  a  part  of  the  land  and 
is  the  property  of  the  municipality.^^  The  special  statutory 
proceeding  in  the  nature  of  a  garnishment,  however,  applies 
to  work  on  public  buildings,  under  the  California  statute. 
This  subject  will  be  discussed  in  detail  hereafter,  under  its 
appropriate  head.^'^ 

such  corporations,  conditioned  for  the  payment  of  all  laborers,  etc., 
was  not  applicable  to  street  contracts:  Cloug-h  v.  City  of  Spokane, 
7  Wash.  279,  34  Pac.  Rep.  934.  This  act  is  not  in  conflict  with  Wash. 
Const.,  art.  ix,  §  2,  and  applies  to  school  districts:  Pacific  Mfg.  Co. 
V.  School  Dist.,  6  Wash.  121,  33  Pac.  Rep.  tiS. 

"'  Cal.  Const.   1879,  art.  xx,   §  6,   Hennins\<>i  General  La-n-s,  p.   civ. 

'"  Kerr's  Cyc.  Code  Civ.  Proc,  §  690,  subd.  15  (as  amended  March 
22,    1907),    and    note. 

"  Cal.  Const.  1879,  art.  xx,  §  15,  Henning's  General  Lavrs,  p.  civ. 

"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1183. 

"  Kruse  v.  Wilson  (Cal.  App.),  84  Pac.  Rep.  442;  Mayrhofer  v. 
Board  of  Elducation,  89  Cal.  110,  112,  26  Pac.  Rep.  646,  23  Am.  St. 
Rep.  451.     See  Board  of  Education  v.  Blake   (Cal.),  38  Pac.  Rep.  536. 

Colorado.  Floorman  v.  School  Dist.,  6  Colo.  App.  319,  40  Pac. 
Rep.    469. 

Montana.     Wliiteside  v.  School  Dist.,  20  Mont.  44,  49  Pac.  Rep.  445. 

Oregon.  Portland  L.  Co.  v.  School  Dist.,  13  Oreg.  283,  10  Pac. 
Rep.    350. 

Utah.  Board  of  Education  v.  Pressed  Brick  Co.,  13  Utah  211, 
44  Pac.  Rep.  709   (1890). 

AVashinf^ton.  But  contra,  apparently  under  special  statutes: 
Maxon  v.  School  Dist.,  5  Wash.  142,  31  Pac.  Rep.  462,  32  Pac.  Rep.   110. 

'■*  Bates  v.  Santa  Barbara  Co..  90  Cal.  543,  546,  27  Pac.  Rep.  438. 
But  in  this  case  the  special  garnishment  proceeding  of  the  mechanic's- 
lien  law  was  allowed  as  against  tlie  contractor. 

See  "  Notice,"  §§  547  et  seq.,  post. 

Orcjion.  Nor  was  such  lien  allowed  against  a  public  bridge, 
although  "bridges"  are  enumerated  among  the  obje.cts  in  §  3669,  Hill's 
Ann.  Laws:  Bank  of  Idaho  v.  Malheur  County,  30  Oreg.  420,  45 
Pac.    Rep.    781,    35    L.    R.    A.    141. 

"  Griffith   V.   Happersberger,  86   Cal.  605,   613,   25  Pac.  Rep.   137,   487. 

'«  See  Bates  v.  Santa  "Barbara  Co.,  90  Cal.  543,  546,  27  Pac.  Rep.  438. 
and  "Notice  to  Owner,"  §$  547  et  seq.,  post. 


155  BUILDING    CONTRACTS  —  GENERAL   PRINCIPLES.  §193 


CHAPTER  XI. 

BUILDING  CONTRACTS.     GENERAL  PRINCIPLES. 

§  193.  General  principles  applicable. 

§  194.  Term  "  original  contract  "  not  used  in  the  statute. 

§  195.  Essentials  of  contract.     How  treated  herein. 

§  196.  Definition  of  "  contract." 

§  197.  Definition  of  "  building  contract." 

§  198.  Parties  to  contract.     Competency. 

§  199.  Same.     Guardian  of  minor. 

§  200.  Same.     Executor. 

§  201.  Same.     Corporations. 

§  202.  Same.     Owner.    Contract  not  binding,  contractor's  lieu  fails. 

Implied  contract. 

§  203.  Same.     Owner. 

§  204.  Same.     Owner.     Street-work. 

§  205.  Contract  made  with  reference  to  statute. 

§  206.  Consent. 

§  207.  Same.     Fraud.     Mistake. 

§  208.  Same.     Indefiniteness  of  contract.     False  reference  to  plans 

and  specifications. 

§  209.  Consideration. 

§  210.  Ratification. 

§  211.  Definition  of  "  original  contract." 

§  212.  Same.     Owner,  laborer,  and  material-man. 

§  213.  Same.     Subcontractor's  contract. 

§  214.  Same.     Definition    of    "  statutory     original    contracts "    and 

"  non-statutory  original  contracts." 

§  215.  Same.     Contract  for  street-work. 

§  193.  General  principles  applicable.'  The  general  i)riii- 
eiples  applicable  to  contracts  are  equally  so  to  building  eon- 
tracts  between  the  owner  and  his  contractor,  and  between 

'  Contract  to  build  in  lease:  McGlynn  v.  Moore,  25  Cal.  384;  Chip- 
man  V.  Emeric,  5  Cal.  49. 

'iiiitliiiu   :;uil  t-onsli  ii<<  ion  <-oii(  r:iol.s:    .See  .3  Current  Law.  .").')(>. 

Mechanic's  lien,  under  c«»ntraot  made  or  to  be  performed  in 
another  .state:      See   note   38   L.   R.   A.    43  0. 

Contract  for  public  work:  See  Newport  W.  &  L.  Co.  v.  Drew,  125 
Cal.   585,   58  Pac.   Rep.   187. 

Entry  in  the  minutes  of  a  school  board,  merely  showing  that  the 
pluiis  .submitted  to  it  had  been  adupteil.  expresses  no  contract: 
Todd  V.  Board  of  Education,   122  Cal.   106,   54  Pac.  Rep.  527. 

See  §  192,   ante. 


§§  194-196  mechanics'  liens.  lf>6 

the  owner  and  his  material-men  or  laborers,  except  where 
the  statute  has  changed  the  rule.-  It  is  here  intended  to 
consider  only  those  principles  peculiar  to  the  contract  under 
discussion, 

§  194.     Term  "  original  contract "  not  used  in  the  statute. 

The  California  statute  nowhere  uses  the  expression  "  origi- 
nal contract,"  although  it  is  frequently  found  in  the  decis- 
ions construing  the  statute.  In  the  chapter  on  mechanics' 
liens  is  often  found  the  terms,  "  such  contracts," "  "  the 
contract,"  *  and  "  his  [the  original  contractor's]  contract."  ^ 
The  statute,  however,  frequently  speaks  of  the  "  original 
contractor."  " 

§  195.    Essentials  of  contract.    How  treated  herein.    The 

essentials  of  a  common-law  contract  must,  of  course,  exist,'' 
not  alone  between  the  original  contractor  and  owner,  but 
also  between  any  claimant  and  the  person  with  whom  he 
stands  in  privity.  While  a  sufficient  common-law  contract 
may  exist  between  such  persons,  it  does  not  necessarily 
follow  that  an  adequate  contractual  relation  is  established 
upon  which  to  base  a  lien  of  the  contracting  person  or  his 
subelaimants.  The  adjudged  law,  so  far  as  it  relates  to  the 
matters  treated  herein,  will  be  considered  in  detail  in  its 
appropriate  place. 

§  196.  Definition  of  "  contract."  A  contract  is  an  agree- 
ment to  do  or  not  to  do  a  certain  thing ;  '^  and  it  is  essential 
to  the  existence  of  a  contract  that  there  shall  be :  1.  Parties 

Contract  for  drawing  plans  and  speeifloatlons  in  anticipation  of 
proceeding's  for  the  building  of  a  public-school  house:  See  Brown  v. 
Board  of  Education,   103  Cal.   531,   535,   37  Pac.  Rep.  503. 

See   also    7    Am.    &    Eng.    Ann.    Cas.    617. 

2  See  West  Coast  L.  Co.  v.  Knapp,  122  Cal.  79,  54  Pac.  Rep.  533,  53.4. 

3  Kerr's  Cyc.  Code  Civ.  Proc,  §§  1183,  1184.  This  apparently  refers 
to   statutory   original    contract. 

*  Kerr's  Cyc.  Code  Civ.  I'roc,  §  1184. 

5  Kerr's  Cyc.  Code  Civ.  Proc,  §S  1187,   1193. 
»  See  "Original  Contractor,"  §§45-65,  ante. 
'  See  Kerr's  Cyc.  Civ.  Code,  §§  1427-1701,  and  notes. 
Oregon.      Requisites    of    contract    under    act    of     1874:      See    Tatum 
V.    Cherry,    12    Oreg.    135,    6    Pac.    Rep.    715. 

*  Kerr's  Cyc.  Civ.  Code,   §  1549,   and   note. 


157         BUILDING    CONTRACTS GENERAL   PRINCIPLES.    §§197-199 

capable   of  contracting;    2.   Consent   of  the   parties;    3.   A 
laAvful  object ;  and  4.  A  sufficient  cause  or  consideration.'* 

§  197.  Definition  of  "  building  contract."  In  the  absence 
of  statutory  qualifications,  a  "  building  contract  "  may  be 
defined  as  a  legal  agreement  between  two  or  more  persons, 
capable  of  contracting,  for  the  construction,  alteration,  addi- 
tion to,  or  repair  of  a  structure  or  other  work  as  a  fixture  to 
the  realty.^" 

§  198.  Parties  to  contract.  Competency.  There  must  be 
parties  capable  of  contracting;  ^^  and,  so,  officers  of  the  court, 
without  the  direction  of  the  court,  cannot,  as  a  rule,  bind 
property  in  their  charge  by  contracts  which  would  otherwise 
impose  a  mechanic's  lien  upon  the  same.^^ 

§  199.  Same.  Guardian  of  minor.  A  guardian  of  a  minor 
cannot  subject  the  estate  and  property  of  his  ward  to  a 
mechanic's  lien  without  first  obtaining  an  order  of  court 
authorizing  the  guardian  to  make  the  contract;  and  the 
infant  is  not  bound  by  the  guardian's  contract  for  the  erec- 
tion or  repair  of  the  building.^^ 

3  Kerr's  Cye.  Civ.  Cotle,  §  1550,  and  note. 

i»  See  "Nature  of  Labor,"  §§130-165,  ante;  "Object  of  Labor," 
§§  166-192,  ante. 

Utah.  A  contract  is  an  agreement  between  two  or  more  per- 
sons, for  a  valuable  consideration,  to  do  or  not  to  do  some  particular 
tiling;  and  when  the  undertaking'  refers  to  constructing,  erecting,  or 
repairing  an  edifice,  or  other  work  or  structure,  it  may  be  called  a 
building  contract:  Utah  L.  Co.  v.  James,  25  Utah  434,  71  Pac.  Rep. 
986. 

"  Persons  able  to  contract:  See  Kerr's  Cyc.  Civ.  Code,  §§  25,  33,  35, 
and   notes. 

As  to  agent,  see  "  Agency,"   §§  572  et  seq.,   post. 

"  Colorado.  Those  who  furnish  supplies  to,  or  perform  labor  for, 
a  receiver  are,  in  law,  supposed  to  know  whether  he  possesses  the 
powers  which  he  assumes  to  exercise:  Hendrie  &  B.  Mfg.  Co.  v.  Parry 
(Colo.),   86   Pac.  Rep.    113. 

''■  Fish  V.  McCarthy,  96  Cal.  484,  31  Pac.  Rep.  529,  31  Am.  St.  Rep. 
237;  Hunt  v.  Maldonado,  89  Cal.  636,  27  Pac.  Rep.  56;  Guy  v.  Du  Uprey, 
16  Cal.   195.   76  Am.   Dec.   518. 

Nor  is  there  any  eqiiitaltle  lien  on  the  property  for  the  value  of  the 
improvements,  such  party  being  fully  informed  as  to  the  title  and 
condition  of  the  property:  Guy  v.  Du  Uprey,  16  Cal.  195.  76  Am.  Dec. 
518. 

Xew  Mexieo.  But  see,  as  to  contract  of  guardian  of  minors. 
Arniijo  v.  Mountain  E.  Co..  11  N.  M.  235.  67  Pac.  Rep.  726,  729; 
Post   V.   Miles.    7   N.   M.   317,    34   Pac.   Rep.    586. 


{;§  200.201  mechanics'  LIENS.  158 

§  200.  Same.  Executor.  An  executor  of  a  will,  without 
;iii  order  of  court  therefor,  cannot  enter  into  a  valid  eon- 
tract  for  the  improvement  of  the  street  in  front  of  the 
property  of  the  estate.^* 

The  executor  can  make  no  contract  which  would  give  a 
contractor's  laborers  in  a  mine,  known  to  be  the  property  of 
the  estate,  a  right  to  file  liens  on  the  same.  A  contract  to 
work  such  property,  signed  by  a  person  as  executor,  if  it  is 
notice  to  claimants  at  all,  is  notice  of  everything  that  it 
contains,  and  would  prevent  the  lien  from  coming  into 
existence. ^^ 

Where  the  executor  of  an  estate  makes  an  unauthorized 
original  contract,  a  purchaser  of  the  property  can,  during 
the  performance  of  the  work,  agree  to  pay  for  the  work,  but 
such  agreement  would  not  authorize  a  mechanic's  lien,  even 
for  work  done  after  the  purchase,  where  the  claim  of  lien 
simply  states  that  the  purchaser  agreed  to  pay  for  the  work, 
nor,  under  such  circumstances,  could  there  be  an  equitable 
lien,  where  there  was  no  agreement,  express  or  implied,  on 
the  part  of  the  purchaser  to  create  the  lien.^® 

§  201.  Same.  Corporations.  Corporations  can  contract 
in  same  manner  as  natural  persons ;  but  where  the  president 
and  secretary  of  a  corporation  enter  into  a  contract  for  the 
erection  of  a  building,  for  and  on  behalf  of  the  corporation, 
with  a  firm  of  which  the  president  is  a  member,  the  contract 
will  be  held  void,  as  in  breach  of  the  fiduciary  relation  of  the 
president  to  the  stockholders,  and  will  confer  no  right  to  a 
mechanic's  lien ;  so  strict  is  the  rule  in  this  regard,  that  no 
inquiry  can  ])e  made  into  the  fairness  of  the  contract  thus 
entered  into.     While  the  firm  cannot  enforce  the  contract, 

"  San  Francisco  Pav.  Co.  v.  Fairfield,  134  Cal.  220,  66  Pac.  Rep.  255. 

Arizona.  Lien  against  property  of  an  estate  under  a  contract 
made  with  an  administrator:  See  point  raised,  but  not  decided,  in 
Bogan  V.  Roy    (Ariz.),   S6  Pac.  Rep.   13,   15. 

Oregon.  Lien  against  estate  of  lessor:  See  Hobkirk  v.  Portland 
Nat.  Baseball  Club,  44  Oreg.  605,  76  Pac.  Rep.  776. 

Wyoming.  As  to  administi-atrix.  see  Seibel  v.  Bath,  5  Wyo.  409, 
40   Pac.   Rep.    756. 

15  Chappius  V.  Blankman,  128  Cal.  362,  364,  60  Pac.  Rep.  925;  San 
Francisco  Pav.  Co.   v.   F:.nrfield.   134  Cal.   220,   66  Pac.  Rep.   255. 

«  San  Francisco  Pav.  Co.  v.  Fairfield,  134  Cal.  220,  222,  224,  225,  66 
Pac.   Rep.   255. 


15U         BUILDING    COxXTKACTS GENERAL    PRINCIPLES.  §§  202,  203 

it  can  recover,  as  upon  a  quantum  meruit,  for  what  the 
corporation  actually  received  in  value  under  the  invalid 
contract. ^■^ 

§  202.  Same.  Owner.  Contract  not  binding,  contractor's 
lien  fails.  Implied  contract.  If  the  original  express  contract 
is  not  binding,  the  lien  of  the  contractor  necessarily  fails. '^ 
There  can  be  no  implied  contract  where  the  work  is  done 
against  the  express  order  of  the  owner. ^^ 

§  203.  Same.  Owner.  It  is  not  necessary  that  the  person 
contracting  for  the  erection  of  the  building  shall  at  the 
time  be  the  owner  of  the  realty  upon  which  the  building  is 
to  be  erected,-"  so  far  as  the  mere  validity  of  the  contract 

"  Sims  V.  Petaluma  G.  L.  Co.,  131  Cal.  656,  659,  63  Pac.  Rep.  1011, 
reversing  62  Id.  300.  See  San  Diego  v.  San  Diego  &  L.  A.  R.  Co.,  44 
Cal.  IDG;  Wilbur  v.  Lynde,  49  Cal.  290,  19  Am.  Rep.  645;  Farmers*  & 
M.  Bank  v.  Downey,  53  Cal.  466,  31  Am.  Rep.  62;  Graves  v.  Mono 
Lake  H.  M.  Co.,  81  Cal.  303,  22  Pac.  Rep.  665;  Wickersham  v. 
Crittenden,  93  Cal.  17,  29,  28  Pac.  Rep.  788;  Berka  v.  Woodward,  125 
Cal.  119,  57  Pac.  Rep.  777,  73  Am.  St.  Rep.  31,  45  L.  R.  A.  420; 
Aberdeen  R.  Co.  v.  Blaikie,  1  Macq.  461. 

See  Kerr's  Cyc.  Civ.  Code,  §§  2229,    2230,   and   notes. 

^Iftntanii.  Before  a  corporation  can  be  bound  by  an  agreement 
made  by  one  or  two  of  its  trustees,  the  burden  is  on  the  plaintiff  to 
show  the  authority  of  such  trustee  or  trustees  to  so  bind  the  cor- 
poration, or  that  the  corporation  ratified  it:  Wagner  v.  St.  Peter's 
Hospital,  32  Mont.  206,  79  Pac.  Rep.  1054. 

Wa-shington.  The  contract  with  a  foreign  corporation  to  build 
is  not  void,  although  it  has  not  complied  with  the  statute  as  to  the 
appointment  of  an  agent,  etc.:  Dearborn  Foundry  Co.  v.  Augus- 
tine, 5  Wash.  67,  31  Pac.  Rep.  327. 

But  see  Kerr's  Cjc.  Civ.  Code,  §§  405-410,  and  notes. 

IS  FLsh  V.  McCarthy,  96  Cal.  484,  485,  31  Pac.  Rep.  529,  31  Am.  St. 
Rep.    237. 

Guardian  cannot  .subject  >vard'.s  uroperty  to  mechanic's  lien: 
Fish  v.  McCarthy,  supra.  See  Morse  v.  Hinckley,  124  Cal.  154,  158, 
56  Pac.  Rep.   896. 

'"  De  Prosse  v.  Royal  Eagle  Dist.  Co.,  135  Cal.  408,  410,  67  Pac.  Rep. 
502    (architect's    services). 

2"  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  109  Cal.  566,  569,  42  Pac.  Rep. 
154.  See  Dunlop  v.  Kennedy  (Cal.),  34  Pac.  Rep.  92,  96;  rehearing 
granted,  in  which  it  was  held  that  the  statute  does  not  require  that 
tlie  contract  for  erecting  a  building  shall  be  signed  by  the  owner;  it 
is  sufficient  if  it  be  signed  by  the  reputed  owner. 

^leelisinio's  lieu  on   land  of  nisirried  »ouian:    See  note   10  L.  R.  A.   33. 

lAen   governed   by   i'on«ra<'(    with    owner:      See    note   13   L.   R.   A.    702. 

N'eces.sitie.s  «»f  eontriiet  with  aiul  eoiiNent  of  owner:  See  note  11 
L.     R.     A.     74  2. 

nautfliters,  as  aK'ent  o»"  owner  in  making  contract,  not  liable: 
See  Schindler  v.  Green  (Cal.  A^p.),  82  Pac.  Rep.  341,  s.  c.  149  Cal.  752. 
o2   Pac.    Rep.    631. 


§  203  mechanics'  liens.  160 

is  concerned,  bnt  he  must  have  a  sufficient  legal  relation  to 
the    property    and    owner,    either    by    way    of    privity    or 

Ala.ska.  The  owner  must  have  knowledge  of  the  building  con- 
tract, even  if  made  by  a  person  in  possession  under  a  contract  of 
purchase,  or  the  contract  must  be  made  at  the  instance  of  the 
owner:  Russell  v.  Hayner,  130  Fed.  Rep.  90,  64  C.  C.  A.  424,  2  Alas. 
703  (Dig-.)  (under  Civ.  Code,  §  265,  act  .Tune  16,  1900,  31  Stats,  at 
L.,    p.    535). 

Colorado.  The  lien  is  founded  on  a  contract,  either  directly  or 
indirectly:  Wilkins  v.  Abell,  26  Colo.  462,  58  Pac.  Rep.  612;  Little 
Valeria  M.  &  M.  Co.  v.  Ingersoll,  14  Colo.  App.  240,  59  Pac.  Rep.  970. 

Contract  with  le.s.see:  See  Wilkins  v.  Abell,  26  Colo.  462,  58  Pac. 
Rep.  612;  Morrell  H.  Co.  v.  Princess  G.  M.  Co.,  16  Colo.  App.  54, 
63  Pac.  Rep.  807;  Schweitzer  v.  Mansfield,  14  Colo.  App.  236,  59  Pac. 
Rep.   843. 

The  ^vork  must  be  done  or  materials  furnished  under  contract, 
express  or  implied,  with  tlie  owner  of  the  property  upon  which  the 
lien  is  claimed,  and  the  claimant  must  ascertain  for  himself  whether 
the  person  with  whom  he  deals  holds  such  a  relation  to  tlie  work 
being  done  on  the  property  as  to  entitle  him  to  a  lien  therefor:  David- 
son V.  Jennings,  27  Colo.  187,  60  Pac.  Rep.  354,  83  Am.  St.  Rep.  49,  48 
L.  R.  A.  340;  Griffin  v.  Seymour,  15  Colo.  App.  487,  63  Pac.  Rep.  809; 
Rico  R.  &  M.  Co.  V.  Musgrave,  14  Colo.  79,  23  Pac.  Rep.  458,  459.' 

The  act  of  1883  authorized  a  lien  only  under  a  contract  witli  the 
owner,  and  persons  holding  a  vendor's  lien,  in  possession  of  the 
property,  not  being  owners  thereof,  could  not  create  a  lien:  Griffin 
V.   Seymour,    15   Colo..  App.    487,    63   Pac.   Rep.    809. 

Hawaii.  A  material-man's  lien  is  dependent  upon,  though  not 
created  by,  contract.  A  mere  trespasser  has  no  lien,  under  the 
statute,  for  materials  furnished  and  used  in  a  building  on  another's 
land.  There  must  be  a  contract  with  the  owner.  The  contract  with 
the  owner  may  be  either  direct  with  the  mechanic  or  material-man 
who  claims  a  lien,  or  it  may  be  with  an  intermediate  contractor,  in 
which  latter  case  there  may  be  a  second  contract,  between  the  con- 
tractor and  subcontractor  or  material-man:  Allen  v.  Reist,  16 
Hawn.     23. 

AVhat  entitles  to  lien.  It  is  not  the  contract  for  erecting  or  repair- 
ing the  building  that  creates  the  lien,  but  the  use  of  the  materials 
furnished  or  labor  performed  by  the  contractor;  the  lien  is  brought 
into  existence  by  virtue  of  the  statute;  and  the  contract  is  entered 
into  presumably  in  view  of  and  with  reference  to  the  statute: 
Hackfeld   v.   Hilo   R.    Co.,    14    Hawn.    448,    451. 

Idaho.  A  mere  trespasser  is  not  the  agent  of  the  owner,  and  a 
person  who  unlawfully  ousts  the  owner  cannot  create  debts  which 
will  form  tlie  basis  of  a  lien  upon  a  mining  claim:  Idaho  G.  M.  Co. 
V.  WMnchell,  6  Idaho  729,  59  Pac.  Rep.  533,  96  Am.  St.  Rep.  290. 

Oregon.  Under  §  3669,  Hill's  Ann.  Laws,  the  original  contractor 
being  the  statutory  agent  of  the  owner,  it  was  held  that  the  contract 
was  entered  into  between  the  claimants  and  the  owner:  Cooper  Mfg. 
Co.  V.  Delahunt,  36  Oreg.  402,  51  Pac.  Rep.  649   (doctrine  questionable). 

Under  an  early  statute  it  was  necessary  for  the  contract  to  be 
made  witi.   the   owner  or  his  agent:     Wilcox  v.   Keith,   3   Oreg.   372. 

Oklahoma.  Contract  with  husband,  as  statutory  agent  of  wife: 
See   Limerick    v.    Ketcham    (Okl.),    87    Pac.    Rep.    605. 

Utah.  A  contract,  express  or  implied,  for  the  building  must  have 
been  made  with  the  owner  of  the  land  or  his  authorized  agent, 
to  entitle  to  the  lien  claimed:    Eccles  L.  'Co.  v.  Martin  (Utah),  87  Pac. 


161       BUILDING    CONTRACTS  —  GENERAL   PRINCIPLES.    §§204,205 

estoppel,  to  render  such  contract  valid,  under  the  general 
principles  of  law. 

The  effect  of  such  contract  as  a  basis  for  liens  of  sub- 
claimants  is  apart  from  the  present  inquiry,  and  will  be 
considered  elsewhere. 

Effect  of  contract  on  the  interest  of  the  owner  in  the 
property,  as  well  as  his  personal  liability  under  a  con- 
tract with  a  person  in  privity  with  the  owner,  is  considered 
under  the  subjects  of  the  "  Obligations  of  the  Owner,"  -^ 
the  "  Extent  of  the  Lien,"  -^  and  in  the  sections  -'  devoted  to 
the  doctrines  concerning  agency.-* 

§  204.  Same.  Owner.  Street-work.  The  statute  ^^  pur- 
porting to  give  a  lien  for  a  street  improvement  "  at  the 
request  of  the  reputed  owner  of  any  lot  "  covers  the  case 
of  the  request  of  the  real  owner.-" 

§  205.  Contract  made  with  reference  to  statute.  The 
parties  to  a  valid  statutory  original  contract  are  presumed 
to  contract  with  reference  to  the  statute.  The  court  say : 
"  The  legislature  may  prescribe  the  form  in  which  contracts 
shall  be  executed  in  order  that  they  may  be  valid  or  binding, 
but  it  cannot  limit  the  right  of  parties  to  incorporate  into 
their  contracts  respecting  property,  otherwise  valid,  such 
terms  as  may  be  mutually  satisfactory  to  them."  -'     It  has 

Rep.  713,  715;  Morrison  v.  Clark,  20  Utah  432,  59  Pac.  Rep.  235  (hus- 
band and  wife). 

AVa-Mliin^on.  Work  done  at  the  request  of  the  original  con- 
tractor, held  to  be  done  at  the  request  of  the  owner,  under  §  5900, 
Ballinger's  Ann.  Codes  and  Stats.:  Peterson  v.  Dillon,  27  Wash.  78, 
67    Pac.    Rep.    397. 

Contract  by  man  who  subsequently  marries  owner;  former  held 
not  responsible,  under  the  circumstances  of  the  case:  Anderson  v. 
Hilker,  38  W^ash.   632,   80  Pac.  Rep.  848. 

Lien  on  community  property;  See  Powell  v.  Nolan,  27  Wash.  318, 
67  Pac.  Rep.  712. 

HuNband  and  ^vife  hh  parties  to  contract,  community  property: 
See   Peterson    v.   Dillon.    27    Wash.    78,    67    Pac.    Rep.    397. 

2'  See  §§  523  et  seq.,  post. 

^  See  §§  438  et  seq.,  post. 

»  See  §§  572  et  seq.,  post. 

"*  See    Hines    v.    Miller,    122    Cal.    517,    55    Pac.    Rep.    401. 

="  Kerr's  Cye.  Code  Civ.  I'roc,  §  1191. 

««  Santa  Cruz  R.  P.  Co.  v.  Lyons,  133  Cal.  114,  116,  65  Pac.  Rep.  329. 

"  Stimson  M.  Co.  v.  Braun.  136  Cal.  122,  125,  68  Pac.  Rep.  481,  89  Am. 
St.  Rep.  116,  57  L.  R.  A.  726. 
Mech.  Liens  —  11 


§§206,207  mechanics'  LIENS.  162 

been  held,  in  some  jurisdictions,  that  it  is  not  necessary  for 
lien  claimants  to  have  had  the  statute  in  mind,  and  that  they 
need  not  have  had  any  intention  to  enforce  a  lien  at  the  time 
of  entering  into  the  contract.  This  question,  however,  has 
never  been  discussed  l)y  the  California  courts. 

§  206.  Consent.  There  must  be  consent,  and  a  meeting 
of  minds,  as  in  the  ordinary  case  of  contracts.-**  Thus  a 
written  proposal  for  bids  to  do  the  work,  and  a  written  bid 
therefor  by  the  contractor,  and  his  bond  for  the  performance 
of  the  work  as  provided  for  in  the  proposal,  constitute  the 
contract.-^ 

Street  improvement.  Contract  inchoate.  Where  it  is 
necessary,  in  order  to  obtain  a  permit,  that  the  owners  of  a 
majority  of  the  frontage  under  a  street-paving  contract 
shall  sign  the  contract,  and  only  one  has  signed,  the  contract 
is  inchoate  until  the  required  number  sign.^° 

§  207.  Same.  Fraud.  Mistake.  The  same  general  prin- 
ciples applicable  to  fraud  and  mistake  seem  likewise  appli- 
cable to  the  original  contract,  and  it  may  be  avoided  for  such 

Colorado.  As  to  entering  into  contract  with  statute  in  view,  see 
Cliicago  L.  Co.  V.  Newcomb,   19  Colo.   265,   74  Pac.   Rep.   786,   789. 

Montana.  The  lien,  under  the  circumstances  of  the  case,  "  did 
not  arise  from  the  contract  under  which  the  work  was  done;  it 
arose  from  the  work  performed  upon  the  property":  Davis  v.  Alvord, 
94  U.  S.  545,  548.  bk.  24  x-..  ed.  283. 

Utah.  "  The  contract  for  the  construction  of  the  building  is 
entered  into  with  a  view  of  or  with  reference  to  the  statute": 
Morrison,  Merrill  &  Co.  v.  Willard.  17  Utah  306,  53  Pac.  Rep.  832.  70 
Am.  St.  Rep.  784. 

Washington.  It  is  not  necessary  that  the  lien  be  referred  to  in 
the  contract,  and  the  claimant  need  not  have  had  it  in  mind  at  the 
time  he  agreed  to  perform  the  work:  Stringham  v.  Davis,  23  W^ash. 
568,    63    Pac.    Rep.    230. 

="  See  Skym  v.  Weske  Consol.  Co.  (Cal.),  47  Pac.  Rep.  116. 

Contract  signed  by  one  party:  See  Reedy  v.  Smith.  42  Cal.  '245; 
Luckhart   v.   Ogden,    30   Cal.    547. 

Montana.  When  the  contract  was  not  completed  until  the  execu- 
tion of  a  bond  agreed  to  be  given,  no  recovery  could  be  had  upon 
such  contract,  when  the  bond  was  not  given:  Hogan  v.  Shields,  20 
Mont.  438,   52  Pac.  Rep.   55. 

Utah.  Under  a  contract  to  furnish  materials  according  to  plans, 
specifications,  and  detail  drawings,  the  latter  become  a  part  of  the 
contract:      Utah    L.   Co.   v.   James.    25   Utah    434.    71   Pac.   Rep.    986. 

29  Gilliam  v.  Brown.   126  Cal.  160.  162,  58  Pac.  Rep.  466. 

»•  Flinn  v.  Mowry,  131  Cal.  481,  484,   63  Pac.  Rep.  724,  1006. 


163  BUILDING    CONTRACTS GENERAL    PRINCIPLES.  §  208 

fraud  and  mistake. ^^  Where,  through  misrepresentation  of 
the  defendant,  plaintiff  was  induced  to  sign  a  contract  he 
had  never  intended  to  sign,  supposing  he  was  signing  one 
which,  the  day  before,  had  been  drawn  up  in  lead-pencil, 
it  may  be  avoided.^^ 

;^  208.  Same.  Indefiniteness  of  contract.  False  reference 
to  plans  and  specifications.  If  the  contract  is  indefinite,  it 
cannot  be  enforced. ^^  Thus  where,  under  the  contract,  the 
building  is  to  be  built  according  to  specifications,  they  are 
an  essential  part  of  the  contract,  and  are  as  material  as  the 
price  paid  or  the  terms  of  payment;  but  where  the  specifi- 
cations are  falsely  referred  to  as  annexed  to  the  contract, 
the  contract  is  void,  and  cannot  form  the  basis  of  a  recov- 
ery.^* And  where  the  written  contract  for  the  construction, 
as  to  the  plans,  drawings,  and  specifications,  states  that  the 
same  "  are  signed  by  the  parties  hereto  and  to  be  kept  and 

•■"  See  Kerr's  Cyc.  Civ.  Code,  §§  1550,   1555-1589,  and  notes. 

Erasure  in  a  buildini;  contract  :  See  Sullivan  v.  California  R.  Co., 
142  Cal.   201,  204,   205,   75  Pac.  Rep.   767. 

Hawaii.  Interlineations  made  after  signing,  lield  to  render  instru- 
ment void  in  toto:  Apona  v.  Kamai,  6  Hawn.  707. 

Idalio.  Alteration  of  contract  after  delivery  :  Lane  v.  Pacific  & 
I.  N.  R.  Co.,  8  Idaho  230,  67  Pac.  Rep.  656. 

Washington.  Corrections  and  interlineations  made  and  inserted 
before  signing  :  See  Crowley  v.  United  States  F.  &  G.  Co.,  29  Wash. 
268,  69  Pac.  Rep.  784. 

'■'^  Cummings  v.  Ross.  90  Cal.  68.  71.  27  Pac.  Rep.  62.  See  Beatty  v. 
Mills,  113  Cal.  312,  45  Pac.  Rep.  468.  And  it  is  probably  true  that 
wliere  a  subcontractor,  material-man,  or  laborer  agrees  with  the 
original  contractor  for  more  than  he  is  entitled  to,  upon  the  under- 
standing between  them  that  it  should  be  made  out  of  the  property, 
there  would  be  such  a  fraud  as  would  vitiate  lien  :  Jewell  v.  McKay, 
82  Cal.  144,  150,  23  Pac.  Rep.  139.  See  also  Verzan  v.  McGregor,  23 
Cal.    339. 

See  "Conspiracy,"  S  380,  post. 

Am  to  iiiiHtulve  in  contract,  see  Stimson  M.  Co.  v.  Rile.v  (Cal.),  42  Pac. 
Rep.  1072.  and  Skym  v.  Weske  Consol.  Co.   (Cal.).  47  Pac.  Rep.  116. 

Montana.  Agreement  among  bidders  on  public  work  not  to  bid, 
void,  as  against  public  policy  :  WHialen  v.  Harrison,  26  Mont.  316,  67 
Pac.    Rep.    934. 

='  Rauer  v.  Fay,  110  Cal.  361.  42  Pac.  Rep.  902:  Rauer  v.  Welsh 
(Cal.),  42  Pac.  Rep.  904.  See  Kreuzberger  v.  Wingfield,  96  Cal.  251. 
255,  31  Pac.  Rep.  109. 

See  chapter  on   "  Variances."  SS  835  et  seq.,  post. 

'^  Worden  v.  Hammond,  37  Cal.  61,  64  (1862);  Willamette  S.  M.  Co. 
V.  Los  Angeles  College.  94  Cal.  229.  233.  29  Pac.  Rep.  629;  Barker  v. 
Doherty,  97  Cal.  10,  31  Pac.  Rep.  1117;  West  Coast  L.  Co.  v.  Knapp, 
122  Cal.  79,  54  Pac.   Rep.   533. 


§§  209, 210  mechanics'  liens.  164 

remain  in  the  office  of  the  architect,"  and  the  same  are  not 
so  signed,  the  contract  is  inchoate,  and  not  complete,  and 
cannot  form  a  basis  of  a  recovery.^"  And  even  where  the 
contract  refers  to  the  plans  and  specifications  only,  and 
does  not  expressly  make  them  a  part  thereof,  where  it 
appears  that  they  are  an  essential  part  of  the  contract,  a 
reference  to  them  as  being  in  the  office  of  the  architect  leaves 
the  contract,  in  its  terras,  essentially  uncertain  and  indefi- 
nite.^® In  such  cases,  the  contract  is  void  as  to  all  its  terms 
and  conditions.^'' 

§  209.  Consideration.  There  must,  of  course,  be  a  legal 
consideration  for  the  contract.^*  Express  or  independent 
consideration  is  not  necessary  to  the  validity  of  the  modifi- 
cation, either  orally  or  in  writing,  of  the  original  contract.^® 
"  The  contract,  when  modified  by  subsequent  oral  agreement, 
is  substituted  for  the  contract  as  originally  made,  and  the 
original  contract  attaches  to  and  supports  the  modified 
contract."  ■*" 

Agreed  abandonment  of  contract  requires  no  new  or  inde- 
pendent consideration.*^ 

§  210.  Ratification.  The  common  principles  of  ratifica- 
tion  of   contracts   seem   to   be   likewise   applicable   to   this 

3»  DonneUy  v.  Adams,  115  Cal.  129,  130,  46  Pac.  Rep.  916:  127  Cal. 
24,  59  Pac.  Rep.  208.  See  West  Coast  L.  Co.  v.  Knapp,  122  Cal.  79.  83. 
54  Pac.  Rep.  583;  Blinn  L.  Co.  v.  Walker,  129  Cal.  62,  66,  61  Pac.  Rep. 
664. 

3"  Greig  v.  Riordan,  99  Cal.  316,  320,  33  Pac.  Rep.  913;  Pierce  v. 
Birkholm,  115  Cal.  657,  660,  47  Pac.  Rep.  681.  See  Holland  v.  Wilson, 
76  Cal.  434,  18  Pac.  Rep.  412;  Willamette  S.  M.  L.  Co.  v.  Los  Angeles 
C.  Co.,  94  Cal.  229,  29  Pac.  Rep.  629;  Yancy  v.  Morton,  94  Cal.  558,  29 
Pac.  Rep.   1111. 

"  Donnelly  v.  Adams,  115  Cal.   129,   132,  46  Pac.  Rep.   916. 

ss  Kerr's  Cyo.  Civ.  Code,  §§  1605-1615,  and  notes.  See,  generally, 
Gibson   v.   W' heeler,   110.  Cal.   243,   245,   42   Pac.   Rep.   810. 

Compare  :    Dore  v.  Sellers,   27  Cal.   588,   593. 

See  also   "  General   Nature  of  Lien,"   §  9,   ante. 

3»  Long  V.  Pierce  Co.,  22  Wash.  330,  61  Pac.  Rep.  142,   147. 

<*  Long  V.  Pierce  Co.,  supra.  See  Bodders  v.  Davis,  88  Ala.  367,  6 
So.  Rep.  834;  Thomas  v.  Barnes,  156  Mass.  581,  31  N.  B.  Rep.  683; 
Brown   V.  Everhard,    52   WMs.   205,   8  N.    VV.   Rep.   725. 

"  Dyer  v.  Middle  Kittitas  Irr.  Dist.,  25  Wash.  80,  64  Pac.  Rep.  1009, 
s.  c.  40   Wash.   238,   82  iPac.   Rep.   301. 


165        BUILDING    CONTRACTS  —  GENERAL   PRINCIPLES.     §§211-213 

species  of  contracts.*-  Thus  a  change  in  plans  by  architect 
must  be  ratified/'*  and  the  acts  of  engineer  changing  the 
plans  of  the  improvement.** 

§  211.  Definition  of  "  original  contract."  Every  contract 
made  by  an  owner  relating  to  the  erection  of  a  building  is 
not  necessarily  an  "  original  contract."  It  has  already  been 
pointed  out  that  there  are  certain  distinguishing  features 
characteristic  of  the  "  original  contractor,"  *'5  and  it  seems 
that  his  contract  is  an  "  original  contract,"  under  which 
other  claimants  may  derive  rights  through  him.  The  term 
"  original  contract  "  evidently  is  used  in  contradistinction  to 
some  subsequent  and  dependent  contract.*" 

§  212.  Same.  Owner,  laborer,  and  material-man.  It  is 
obvious  that  the  contract  between  the  owner  and  his  laborer 
or  material-man  cannot  be  related  in  the  manner  pointed 
out  in  the  preceding  section,  and  hence  cannot  be  "  an 
original  contract."  *^ 

§  213.  Same.  Subcontractor's  contract.  The  contract 
of  a  subcontractor  is  not  "  an  original  contract,"  although 
he  may  create  intermediate  liens,  and  for  that  reason  it  is 
not  required  either  to  be  in  writing  or  to  be  recorded.*^ 

*-  Ellison  V.  Jackson   W.  Co.,   12   Cal.   542,   552. 

As  to  waiver  of  provisions  for  Iienefit  of  owner,  see  "Certificate," 
§§  238  et  seq.,  post;    "  Pei-formance,"  SS  334  et  seq.,  post. 

"  De  Mattes   v.   Jordan,    15   Wash.    378,    46   Pac.   Rep.    402. 

"  Wortman  v.  Montana  Cent.  R.  Co..  22  Mont.  266,  56  Pac.  Rep.  316 

*^''  See   §§  45-65,   ante. 

«  See  Mclntyre  v.  Trautner,   63  Cal.  429,   430. 

"  Bryson  v.  McCone,  121  Cal.  153,  53  Pac.  Rep.  637;  Hinckley  v. 
Field's  Biscuit  &  C.  Co..  91  Cal.  136,  139,  27  Pac.  Rep.  594-  Reed  v 
Norton,  90  Cal.  590,  599,  26  Pac.  Rep.  767,  27  Id.  426.  The  language  of 
Santa  Monica  L.  Co.  v.  Hege,  119  Cal.  376,  378,  51  Pac.  Rep.  555,  "as 
the  amount  of  the  materials  purchased  from  the  plaintiff  was  less 
than  one  thousand  dollars  in  value,  the  provisions  of  the  code  relating 
to  the  written  contract  and  filing  the  same  for  record  have  no  appli- 
cation." and  similar  expressions  in  IMadera  P.  &  T.  Co.  v.  Kendall 
120  Cal.  182,  52  Pac.  Rep.  304,  65  Am.  St.  Rep.  117,  relative  to  the 
contract  for  materials,  are  misleading,  although  in  the  former  case 
the  court  recognized  the  fact  that  a  material-man  is  not  an  original 
contractor. 

<»  Reed  v.   Norton,   90  Cal.   590.   599.   34   Pac.   Rep.   333. 

See  "Subcontractor,"  §§  66-76,  ante. 


§§214,215  mechanics'  liens.  166 

A  subcontract  has  been  defined  ])y  the  Oregon  courts  to 
be  a  contract  by  one  who  has  contracted  for  the  performance 
of  labor  or  service  Avith  a  third  party  for  the  whole  or  part 
performance  of  that  labor  or  service ;  "*  but  this  definition  is 
open  to  criticism. 

§  214.  Same.  Definition  of  "  statutory  original  contracts  " 
and  "  non-statutory  original  contracts."  The  statutory  pro- 
vision ^°  divides  original  contracts  with  reference  to  struc- 
tures and  for  work  in  mines  into  two  great  classes :  1.  Those 
in  which  the  amount  agreed  to  be  paid  thereunder  exceeds 
one  thousand  dollars;  and  2.  Other  original  contracts. 
The  first  of  the  classes  of  original  contracts,  for  the  sake  of 
definiteness  and  precision,  will  be  designated  as  "  statutory 
original  contracts,"  and  the  second  class  as  "  non-statutory 
original  contracts."  These  classes  of  original  contracts 
will  be  considered  hereafter  in  detail,  the  California  and 
Colorado  statutes  being  in  this  respect  almost  similar. 

§  215.  Same.  Contract  for  street-work.  Under  section 
eleven  hundred  and  ninety-one  of  the  Code  of  Civil  Pro- 
cedure, providing  for  the  construction  of  sidewalks,  etc.,  in 
incorporated  cites,  there  is  no  statutory  original  contract, 
within  the  meaning  of  section  eleven  hundred  and  eighty- 
three  of  the  same  code.^^ 

■">  Smith  V.  Wilcox,  44  Oreg.  325,  74  Pac.  Rep.  708;  rehearing  denied, 
75  Pac.  Rep.  710. 

50  Kerr's  C'yc.  Code  Civ.  Proc,  §  1183. 

Colorado.  The  contracts  referred  to  In  Laws  1893,  p.  316,  §  1, 
which  were  required  to  be  recorded,  were  those  entereu  Into  between 
the  reputed  owner  and  a  contractor,  in  which  certain  work  is  con- 
tracted to  be  done,  and  a  certain  price  was  contracted  to  be  paid; 
and  the  failure  to  record  a  contract,  not  within  the  purview  of  tlie 
statute,  did  inure  to  the  benefit  of  third  parties,  so  as  to  give  a  lien: 
Maner  v.  Shull,  11  Colo.  App.  322,   52  Pac.  Rep.   1115. 

"  Kreuzberger  v.  Wlngfleld,   96   Cal."  251,   257,   31   Pac.   Rep.    109, 


167  CONSTRUCTION    OF    BUILDINU    CONTRACTS.  §  216 


CHAPTER   XII. 

BUILDING  CONTRACTS  (CONTINUED).  CONSTRUCTION  OF 
SAME.  IN  GENERAL. 

§  216.  Construction  of  building  contracts.     In  general. 

§  217.  Several  contracts  relating  to  the  same  matters. 

§  218.  Ambiguity  or  uncertainty  in  contract. 

§  219.  Particular  clauses.     General  intent. 

§  220.  Entire  and  severable  contracts. 

§  221.  Dependent  and  independent  promises. 

§  222.  Joint  and  several  contracts. 

§  223.  Contract  explained  by  circumstances. 

§  224.  Reasonable  stipulations,  when  implied. 

§  225.  Same.     Time  of  performance  unspecified. 

§  226.  Warranty. 

§  227.  Construction  of  statutory  original  contracts.     Penalty. 

§  228.  Instances  of  construction  of  contracts. 

§  216.     Construction  of  building  contracts.     In  general. 

The  general  principles  of  law  relating  to  the  construction  of 
contracts  are  applicable  to  building  contracts.  They  have 
their  enunciation  in  the  Civil  Code  of  California.^  These 
general  principles  will  be  here  considered  only  so  far  as 
they  serve  to  illustrate  the  decisions  relating  to  the  subject- 
matter  treated  in  this  work.  In  the  following  chapter  Avill 
be  treated  in  detail  certain  provisions  frequently'  found  in 
building  contracts. 

'  Kerr's  Cye.  Civ.  Code,  §§1635-1661,  and  notes.  See  also  "Con- 
struction of  Mechanic's-Lien  Statutes,"  §§  24-27,  ante. 

Oregon.  See  Chamberlain  v.  Hibbard,  26  Oreg.  428,  38  Pac.  Rep. 
437  (where  the  contract  called  for  common  mortar,  and  the  specifica- 
tions for  the  use  of  cement  in  the  mortar,  the  contractor  is  not 
liable  when   common   mortar  was  used). 

C'oiitraet  and  bond  executed  at  the  same  time  will  lie  construed  as 
one  instrument  :    Henry  v.  Hand,  36  Oreg.  492,  59  Pac.  Rep.  330. 

I'tah.  When  the  agreement  is  to  furnish  building  material  ac- 
cording to  plans,  specifications,  and  detail  drawings,  the  plans,  speci- 
fications, ?nd  detail  drawings  become  a  part  of  the  contract  :  Utah 
L.  Co.  V.  .Tames.   25  Utah   434.   71  Pac.  Rep.  986. 

Washington.  Working  details  prepared  by  a  city  engineer  become 
a  part  oi.  a  contract  to  grade  and  do  other  street-work  according  to 
certain  plans  of  such  engineer  and  under  his  directions,  the  plans  not 
being  attached  to  the  contract,  but  this  clause  does  not  authorize 
such    engineer    to    insert    in    the    contract    provisions    prohibiting    the 


§§  217, 218  mechanics"  liens.  168 

§  217.  Several  contracts  relating  to  the  same  matters. 
Where  there  are  several  contracts  relating  to  the  same 
matters  between  the  same  parties,  made  as  parts  of  sub- 
stantially one  transaction,  they  are  to  be  taken  together.- 
Thus  when,  at  the  time  of  executing  a  contract  for  street- 
work,  and  as  a  part  of  the  same  transaction,  a  receipt  for 
the  difference  between  the  amount  as  named  in  the  contract 
and  the  price  agreed  between  the  parties  in  the  contract, 
which  contained  a  provision  for  the  payment  of  the  balance 
in  instalments,  the  two  instruments  constitute  the  agreement 
between  the  parties,  and  are  to  be  taken  with  the  same 
effect  as  if  the  terms  of  both  had  been  incorporated  in  one 
document  and  signed  by  both  parties,  and  are  to  be  con- 
strued, as  far  as  practicable,  so  as  to  give  effect  to  every 
part  of  each  instrument.* 

§  218.  Ambiguity  or  uncertainty  in  contract.*  If  the 
terms  of  a  promise  in  an  agreement  are  in  any  respect 
ambiguous  or  uncertain,  it  must  be  interpreted  in  the  sense 
in  which  the  promisor  believed,  at  the  time  of  making  it, 
that  the  promisee  understood  it ;  ^  and  the  language  of  the 

contractor  from  assigning  the  contract,  fixing  the  time  within  which 
the  work  shaU  be  completed,  or  prescribing  a  penalty  for  liquidated 
damages,  or  extra  compensation  for  the  work,  or  anything  save  the 
working  details  :  Young  v.  Borzone,  26  Wash.  4,  66  Pac.  Rep.  135, 
139,    421. 

AVhere  a  bond  is  given  to  secure  performance  of  a  building  con- 
tract, it  is  the  contract,  and  not  the  bond,  which  is  primarily  to  be 
construed,  and  the  construction  of  the  contract  cannot  be  affected  by 
the  fact  that  the  bond  is  given  for  its  performance;  it  must  be  con- 
strued with  reference  to  the  intentions  of  the  parties  to  the  contract, 
as  gathered  from  the  instrument  :  Cowles  v.  United  States  F.  &  G. 
Co.,  32  Wash.  120,  72  Pac.  Rep.  1032,  98  Am.  St.  Rep.  838. 

'^  Arizona.  The  rule  is  well  settled,  that  when  the  terms  and  lan- 
guage of  the  contract  are  ascertained,  in  the  absence  of  technical 
phrases,  or  the  existence  of  latent  ambiguities,  rendering  the  subject- 
matter  of  the  contract  uncertain  or  doubtful,  the  office  of  interpreting 
its  meaning  belongs  to  the  court  alone  :  O'Connor  v.  Adams  (Ariz.), 
59   Pac.   Rep.   105. 

»  Flinn  v.  Mowry,  131  Cal.  481,  63  Pac.  Rep.  724,  1006:  Kerr's  Cyc. 
Civ.  Code,   §  1641,  and  note. 

<  Flinn  v.  Mowry,  131  Cal.  481,  63  Pac.  Rep.  724  .(judgment  modified, 
63   Pac.    Rep.    1006). 

See   §§  208,   216,   ante. 

=  Laidlaw  v.   Marye,   133  Cal.  170,   179,   65  Pac.  Rep.   391. 

See  Kerr's  Cyc.  Civ."  Code,  §  1649,  and  note. 


169  CONSTRUCTION   OF    BUILDING    CONTRACTS.    §§  219,  220 

contract  is  to  be  interpreted  most  strongly  against  the  party 
who  caused  the  uncertainty  to  exist;  the  promisor  is  pre- 
sumed to  be  such  party ;  ^  especially  so,  where  the  promisor 
draws  the  contract.' 

§  219.  Particular  clauses.  General  intent.  The  statutory 
rule  is,  that  particular  clauses  of  a  contract  are  subordinate 
to  its  general  intent.^  There  is  an  exception  to  this  rule  in 
those  cases  where  the  parties  insert  in  their  contract  a  clause 
to  the  effect  that  certain  language  used  by  them,  which  has 
become  provincial,  or  has  a  peculiar  and  technical  meaning 
in  a  particular  trade,  shall  be  taken  to  be  used  in  a  desig- 
nated sense,  when  the  designation  thus  made  is  clear  and 
free  from  ambiguity.® 

§  220.  Entire  and  severable  contracts.  Where  the  eon- 
tract  is  to  furnish,  at  a  fixed  rate  per  ton,  all  the  iron 
couplings  to  be  used  in  the  construction  of  a  pipe  line,  the 
contract  is  an  entire  contract.^*^    And  Avhere  the  contractor 

»  Laidlaw  v.  Marye,   133  Gal.  170,   179,   65  Pac.  Rep.  391. 

See  Kerr'.s  Cyc.  Civ.  Code,  §  1654,  and  note. 

An  instrnnieiit  is  to  be  interpreted  most  strongly  against  party 
bound  by  it:    Flinn  v.  Mowry,   131  Gal.  481,  484,  63  Pac.  Rep.  724,   1006. 

See   Kerr's  Cyc.  Civ.  Code,   §  1654,   and   note. 

•   Uaidlaw  v.  IV[arye,   133  Gal.   170,   179,   65  Pac.  Rep.   391. 

"  Kerr's  Cyc.  Civ.  Code,  §  1650,  and  note.  See  J.  M.  Griffith  Co.  v. 
City  of  Los  Angeles  (Gal.  Sup.),  54  Pac.  Rep.  383  (contract  for  con- 
structing a  sewer  with  a  city;  balance  in  excess  of  cost  of  repairs; 
chang-e  in  contract  respecting,  bands).  See  Gray  v.  La  Soci6t6  Fran- 
Saise  de  B.  M.,  131  Gal.  566,  570,  63  Pac.  Rep.  848. 

'  See  Morrison  v.  Wilson,   30  Gal.  344,  348. 

'"  First  Nat.  Bank.  v.  Perris  Irr.  Dist.,  107  Gal.  55,  65,  40  Pac.  Rep.  45. 

Architect's  contract  for  plans  and  specifications  and  for  superin- 
tendence is  an  entire  contract:  See  4  Am.  &  Eng.  Ann.  Gas.  831  7 
Id.    617. 

Colorado.  The  contract  of  a  custodian  of  a  mine  to  receive  wages 
to  be  paid  monthly,  to  be  terminated  by  either  party  at  any  time,  for 
the  purpose  of  supporting  a  lien,  is  not  a  new  hiring  each  month,  but 
the  labor  is  done  under  the  original  contract  until  it  is  ended;  and. 
under  the  circumstances  of  the  case,  a  lien  did  not  attacli:  Griffin  v. 
Seymour,  15  Colo.  App.  487,  63  Pac.  Rep.  809. 

Am  to  entire  contract,  see  W^alling  v.  Warren,   2  Colo.   434. 

Montana.  Single  contract  on  open  continuous  account  :  Western 
I.  W.  V.  Montana  P.   &  P.   Co.,   30  IMont.   550,    77   Pac.   Rep.   413,   417. 

Where  monthly  accounts  are  rendered  for  supplies  sold  at  various 
times,  under  no  special  agreement,  the  vendor  not  enforcing  collec- 
tion every  month  as  a  matter  of  grace,  and  relying  on  the  supposed 
solvency  of  the  vendee  and  the  value  of  its  concentrates,  there  is  no 
running   account,    but    each    sale    is    made   under   a   separate   contract. 


§  220  mechanics'  liens.  170 

agreed  to  repair  an  old  house,  and  to  build  a  new  addition 
thereto,  to  be  attached  to  it,  the  old  house  to  be  turned  partly 

payment  being-  due  at  tlie  end  of  the  month;  such  transactions  being 
distinguisliable  from  those  wlierein  supplies  are  to  be  furnished 
wliere  a  reasonably,  if  not  perfectly,  definite  amount  of  material 
could  be  counted  upon,  from  time  to  time,  under  one  general  contract; 
but  purchases  made  under  no  special  agreement  cannot  be  considered 
a  continuing  running  account  :  A.  M.  Holter  H.  Co.  v.  Ontario  M.  Co., 
24  Mont.  184;  61  Pac.  Rep.  3,  7,  8.  See  Big  Blackfoot  M.  Co.  v.  Blue- 
bird M.  Co.,  19  Mont.  456,  48  Pac.  Rep.  778. 

As  to  Tvlien  statute  of  limitations  begins  to  run  against  mechanic's 
lien  on  a  ruuniuK'  account,  see  note  T  Am.  &  Eng.  Ann.  Cas.  947. 

AViiere  no  time  is  fixed  for  payment  in  an  agreement  to  furnisli  all 
services  and  materials  for  constructing  a  heating  plant,  to  be  paid 
for  under  a  schedule  of  prices,  a  substantial  performance  of  the 
whole  contract  is  a  condition  precedent  to  liability  under  the  express 
contract  for  the  whole  or  any  part  of  the  consideration,  and  the  fixing 
of  the  prices  on  the  different  items  does  not  amount  to  a  severance: 
Riddell  v.  Peck-Williamson  H.  &  V.  Co.,  27  Mont.  44,  69  Pac.  Rep.  241. 

See  Helena  S.  H.  &  S.  Co.  v.  Wells,  16  Mont.  65,  40  Pac.  Rep.  78,  in 
which  it  was  held  that  when  all  the  items  in  the  account  relate  to 
one  transaction,  and  is  between  the  same  parties,  it  constitutes  a  con- 
tinuous account,  regardless  of  different  times  of  delivery,  and  dates 
from  the  day  of  the  last  item.     See  also  Alvord  v.  Hendrie,  2  Mont,  lib 

Nevada.     See   Capron   v.   Strout,    11    Nev.    304. 

Oregon.  A  contract  for  the  construction  of  four  buildings,  for  a 
fixed  sum,  to  be  made  in  semimonthly  payments  of  seventy-five  per  cent 
of  the  labor  performed  and  material  used,  the  balance,  or  twenty-five 
per  cent  of  the  total  contract  price,  to  be  paid  thirty-tliree  days  after 
the  building's  are  completed,  finished,  delivered,  and  accepted,  is  entire 
and  inseverable,  although  there  is  a  later  clause  in  the  contract  that 
the  total  sum  shall  be  so  segregated  and  divided  In  the  payment 
thereof  as  to  require  fixed  amounts  for  each  of  the  structures  : 
Wehrung  v.   Denham.    42   Oreg.    386,    71   Pac.   Rep.    133. 

One  contract  for  four  buildings  entire,  though  in  computing  the 
price  plaintiff  estimated  the  cost  of  one  building  and  multiplied  it 
by  the  number  of  buildings:  Title  G.  &  T.  Co.  v.  Wrenn,  35  Oreg.  62, 
56   Pac.   Rep.   271,    76   Am.   St.   Rep.   454. 

Utah.  When  all  the  items  of  an  account  relate  to  one  continuous 
transaction  between  the  same  parties,  although  the  goods  were  de- 
livered on  separate  orders,  and  at  different  dates,  within  sliort 
intervals  of  each  other,  and  the  dealings  of  the  parties  indicate  an 
expectation  to  continue  such  business  relations,  the  transactions  con- 
stitute a  continuous  running  account,  regardless  of  intervening  irreg- 
\ilar  monthly  balances  in  the  account,  which  dates  from  the  date  of 
the  last  item  delivered  and  relates  back  to  the  time  of  the  first 
delivery  of  material;  but  if  the  materials  are  furnished  for  separate 
and  distinct  purposes,  under  distinct,  separate  contracts  or  orders, 
requiring  cash  payment,  under  circumstances  tending  to  rebut  deal- 
ings of  a  continuous  nature,  there  would  be  no  presumption  of  a 
continuous  account,  and,  in  the  absence  of  an  express  contract,  the 
right  to  a  lien  dates  from  the  time  of  the  commencement  to  furnish 
the  materials  for  the  different  separate  contracts  on  each  separate 
order:    Fields  v.  Daisy  Gold  M.  Co.,   25  Utah   76,   69   Pac.  Rep.   528. 

See  also  note  7   Am.  &  Eng.  Ann.  Cas.  947.   948. 

I'nder  a  contract  t«»  run  tunnel  of  fixed  length,  at  a  definite  price, 
the   owners   agreeing    "to   receive   said   tunnel    one   hundred   feet   at   a 


171  CONSTRUCTION    OF    BUILDING    CONTRACTS.  §  220 

round  and  placed  on  a  new  brick  foundation  to  be  laid 
under  both  the  old  house  and  the  new  addition,  the  contract 
is  an  entirety,  where  there  is  nothing  in  the  contract  by  which 
the  price  to  be  paid  for  any  part  of  the  work  or  materials 
can  be  distinguished  from  that  to  be  paid  for  any  other  part, 
and  the  word  "  building,"  in  a  condition  in  the  contract, 
upon  which  the  third  instalment  is  to  be  paid,  comprehends 
the  new  part,  where  the  condition  of  the  first  payment  is 
that  the  "  old  part  "  and  not  the  "  old  building  "  shall  be 
placed  in  position.'^ 

A  contract  to  bore  two  thousand  feet  of  well-holes  on  oil- 
lands,  under  a  scale  of  prices  per  foot,  held,  from  a  con- 
struction of  the  contract,  that  the  plaintiff  was  to  be  paid 
at  a  fixed  price  per  foot  for  each  and  every  foot  of  hole 
sunk  by  him  in  an  honest  endeavor  to  carry  out  the  contract, 
and  he  Avas  entitled  to  payment  for  sinking  a  hole  five 
hundred  and  eighty  feet,  which  was  abandoned  by  consent 
of  the  parties,  by  reason  of  a  broken  stem,  or  bit,  upon  which 
there  was  a  cave  of  one  hundred  and  fifty  feet,  preventing 
further  drilling  therein.^- 

Where  a  contractor  agrees  to  timber  a  tunnel  in  a  work- 
manlike and  practical  manner  so  as  to  protect  against 
outward  and  inward  pressure,  and  he  is  controlled  in  this 
by  the  further  provisions  that  the  tunnel  is  to  be  constructed 
according  to  the  specifications  of  the  engineers  of  the 
owner,  and  that  the  material  for  timbering  is  to  be  furnished 
by  the  owner,  notwithstanding  that  the  contract  is  indivis- 
ible and  entire,  the  contractor  is  not  responsible  for  caving 

time,  and  to  pay  "  the  contractor  "  one  thousand  doUars  upon  the  com- 
pletion of  such  one  hundred  feet,"  and  the  second  hundred  feet  were 
not  paid  for,  the  contractor,  abandoning  the  work,  can  recover  for 
that  already  done,  the  payment  of  the  one  thousand  dollars  upon 
the  completion  of  each  hundred  feet  being  a  condition  precedent  to 
the  complete  performance  of  the  work  :  Bennett  v.  Shaughnessy, 
6  Utah    273,   22   Pac.   Rep.   156. 

Washington.  So  where  the  contract  of  an  architect  was  to  draw 
plans  and  superintend  the  construction  of  the  building  to  comple- 
tion, the  fact  that  payment  was  to  be  made  by  the  month  does  not 
affect  the  entirety  of  the  contract:  Nason  v.  Northwestern  M.  &  P. 
Co.,    17   Wash.   142,   49   Pac.   Rep.    235. 

An  to  architect'.s  contract,  see  4  Am.  &  Eng.  Ann.  Cas.   836,   7   Id.  617. 

"   Clark  V.  Collier,   100  Cal.   2o6,  258,  34  Pac.  Rep.  677. 

'-  Cook  V.  Columbia  O.  A.  &  R.  Co.,  144  Cal.  670,  674,  78  Pac.  Rep. 
287. 


§§22],  222  mechanics'  liens.  172 

of  the  timnel,  caused  by  the  failure  of  the  owner  to  furnish 
suitable  timbers  and  by  the  mistake  of  the  engineers  as  to 
the  strength  of  material. ^^ 

Contract  to  grade  railroad.  AVhere  a  contract  provides 
for  the  grading  of  a  section  of  a  railroad  and  the  doing  of 
the  masonry  work,  and  all  things  necessary  for  placing 
the  cross-ties  and  iron  equipment  on  the  track,  and  the 
owner  was  to  pay  the  contractor  a  certain  price  for  the  work, 
to  be  paid  in  instalments  as  the  work  progressed,  at  amounts 
to  be  fixed  on  estimates  of  the  chief  engineer  of  the  com- 
pany, the  contract  is  entire,  notwithstanding  the  provision 
for  payments  from  time  to  time  as  the  work  progressed.^* 

§  221.  Dependent  and  independent  promises.  Where 
mutual  promises  go  to  the  whole  consideration  on  both  sides, 
they  are  concurrent  and  dependent;  for  instance,  the 
promise  of  the  contractor  to  protect  the  building  from  liens, 
and  that  of  the  owner  to  pay  seventy-five  per  cent  of  the 
contract  price  during  the  progress  of  the  building,  upon 
certificates  of  the  architect,  and  the  balance  upon  its  com- 
pletion, are  mutual  and  dependent,  and  go  to  the  whole 
consideration.^^  But  an  agreement  of  the  owner  to  pay  the 
contract  price  thirty-five  days  after  the  completion  of  the 
contract  is  independent  of  the  engagement  of  the  contractor 
to  keep  the  structure  in  repair  for  one  year  after  such  com- 
pletion.^^ 

§  222.  Joint  and  several  contracts.  Where  payment  in 
full  is  made  to  one  of  two  joint  contractors,  who  has  a  right 

"  McConnell  v.  Corona  City  W.  Co.,  149  Cal.  60,  63,  85  Pac.  Rep.  929. 

"  Cox  V.  Western  Pac.  R.  Co.,  44  Cal.  18,  28,  s.  c.  47  Cal.  87,  89.  See 
Cox  V.  McLaugrhlin,  52  Cal.  590,  595,  54  Id.  605,  63  Id.  205,  76  Id.  60,  62. 
18  Pac.  Rep.  100,  9  Am.  St.  Rep.  164;  Atlantic  &  D.  R.  Co.  v.  Delaware 
C.  Co.,  98  Va.  503,  508,  37  S.  E.  Rep.  13. 

"  Ernst  V.   Cummings,   55   Cal.   179,    184. 

Montana.  Breach  of  a  subsequent  independent  contract,  so  con- 
strued, held  not  to  be  a  breach  of  the  antecedent  contract  :  Wort- 
man  V.  Montana  Cent.  R.  Co.,  22  Mont.  266,  56  Pac.  Rep.  316. 

Oregon.  The  modern  tendency  of  courts,  when,  a  matter  of  con- 
struction is  left  in  doubt,  is  to  prefer  the  one  which  renders  mutual 
promises  or  agreements  dependent  rather  than  independent  :  Henry 
V.  Hand,   36  Oreg.   492.   59  Pac.  Rep.  330. 

'8  First  Nat.  Bank  v.  Perris  Irr.  Dist.,  107  Cal.  55,  67,  40  Pac. 
Rep.  45. 


173  CONSTRUCTION    OF    BUILDING    CONTRACTS.  §  223 

to  receive  it,  a  separate  cause  of  action  cannot  accrue  to 
the  other ;  but  where  the  work  of  each  can  easily  be  done 
separately,  and  both  receive  payment  for  what  he  actually 
did  in  running  a  tunnel,  at  a  certain  price  per  foot,  if  the 
defendant  treats  the  contract  as  several,  and  measures  the 
work  of  one,  and  agrees  to  pay  him  as  soon  as  the  other 
finishes  the  work,  a  separate  cause  of  action  for  such  work 
is  created,  and  the  defendant  cannot  shield  himself  from 
liability  by  payment  to  the  other  party.^' 

§  223.  Contract  explained  by  circumstances.  A  contract 
may  be  explained  by  reference  to  the  circumstances  under 
which  it  was  made  and  the  matter  to  which  it  relates. ^'^  Tlie 
contract  must  be  considered  as  a  whole,  and  regard  must  be 
had  to  the  situation  of  the  parties,  the  surrounding  circum- 
stances, and  the  object  to  be  accomplished,  in  order  to 
arrive  at  the  intention  of  the  parties. ^'^ 

Where  the  contract  provided  that  the  contractor  was  to 
build  a  dam  "  in  the  year  1867,  or  as  soon  thereafter  as  prac- 
ticable," it  will  not  be  construed  to  mean  "  that  which  can  be 

"  Sullivan  v.  Grass  Valley  Q.  M.  &  M.  Co.,  77  Cal.  418,  421,  19  Pac. 
Rep.   757. 

See  Kerr's  Cyc.  Civ.  Code,  §§  1659,   1660,  and  notes. 

's  Kerr's  Cyc.  Civ.  Code,  §  1647,  and  note. 

"  Far  West  O.  Co.  v.  Witmer  Bros.  Co.,  143  Cal.  306,  77  Pac.  Rep. 
61    (clause  construed  as  an   independent  covenant). 

W^asliinfirtoii.  Where  a  contract  provided  that  any  improper  build- 
ing materials  may  be  condemned,  materials  accepted  in  the  construc- 
tion of  the  building  fixes  the  liability  :  Childs  L.  &  Mfg.  Co.  v.  Page, 
28   Wash.    128,    68   Pac.   Rep.    373. 

Where  the  contract  for  the  construction  of  a  ditch  provided  for 
the  removal  of  "  eartli  and  gravel  "  betvpeen  certain  points,  the 
removal  of  "cement-gravel"  was  held  to  be  v^ithin  the  terms  of  the 
contract,  although  attended  with  greater  difflcuties,  it  appearing  tliat 
at  the  time  of  the  execution  of  the  contract  the  contractors  knew 
or  might  have  known  that  the  work  where  the  "cement-gravel"  was 
encountered  might  be  more  difficult  to  perform  than  elsewhere: 
Wilkin  V.  Bllenburgli  W.  Co..   1   Wash.  236,  24  Pac.  Rep.  460. 

Where  a  building  contract  authorized  the  owner  to  construe  tlie 
terms  thereof,  and  made  his  construction  after  the  completion  of  tlie 
work,  and  the  contract  in  regard  to  the  plastering  provided  that  the 
lathing  should  receive  two  coats  of  plaster  and  "  carpet  float  for 
calcimining  walls,"  the  owner  was  authorized  to  construe  the  pro- 
vision as  requiring  three  coats  of  plaster,  the  contractor  not  urging 
a  waiver  of  the  owner's  right  so  to  construe  the  contract  by  silence, 
or  failure  to  object  at  the  time  the  plaster  was  placed  on  the  walls  : 
Sweatt  v.  Hunt,  42  Wash,  96,  84  Pac,  Kep,   1. 


§§  224, 225  mechanics'  liens.  174 

accomplished  by  hiiinan  means " ;  its  meaning  must  be 
ascertained  from  the  nature  of  the  contract,  the  difficulties 
to  be  overcome,  and  the  importance  to  the  plaintiff  of  an 
early  completion.  Each  case  is  governed  by  its  own  circum- 
stances.^" 

§  224.  Reasonable  stipulations,  when  implied.  Stipula- 
tions which  are  necessary  to  make  a  contract  reasonable,  or 
conformable  to  usage,  are  implied,  in  respect  to  matters 
concerning  which  the  contract  manifests  no  contrary  inten- 
tion.-^ So  in  the  absence  of  a  provision  in  the  contract  as 
to  how  windows  are  to  be  placed,  there  is  impliedly  in  the 
contract  an  agreement  that  it  shall  be  done  in  a  workman- 
like manner.-^ 

Where  a  public  body  contracts  to  provide  material,  it  is 
implied  that  the  material  shall  be  of  proper  strength  and 
suitable  for  the  purpose,  and  in  such  case  no  presumption 
will  be  indulged  that  there  is  an  uncertainty,  under  the 
statute  -^  providing  that  an  uncertainty  in  a  contract 
between  a  public  body  and  a  private  individual  shall  be 
presumed  to  be  caused  by  the  latter.-* 

§  225.  Same.  Time  of  performance  unspecified.  If  no  time 
is  specified  for  the  performance  of  an  act  required  to  be  per- 

2»  Reddy  v.  Smith,  42  Cal.  245. 

"  Kerr's  Cyc.  Civ,  Code,  §  1655,  and  note. 

Colorado.  A  contract  for  the  erection  of  a  building-,  "  of  the  best 
lumber."  merely,  tnust  be  construed  to  mean  the  best  lumber  of  which 
buildings  were  ordinarily  constructed  at  that  place:  Mclntyre  v. 
Barnes,   4  Colo.  285. 

:tlontana.  A  building  contractor's  agreement  to  "furnish  all  ma- 
terial and  do  all  labor"  must  be  Interpreted  to  mean  that  he  will 
pay  for  the  same:    Cockrill  v.  Davie.  14  Mont.  131.  35  Pac.  Rep.  958. 

=2  Schindler  v.  Green  (Cal.  App.),  82  Pac.  Rep.  631.  This  point  was 
eliminated  in  the  decision  on  hearing  in  the  supreme  court:  149  Cal. 
752,    87    Pac.   Rep.    626. 

Idaho.  Where  a  railway  company  contracts  to  fence  tlie  edge  of 
pit-ground  on  both  sides  of  its  track,  and  to  construct  a  switch,  but 
does  not  specify  how  it  shall  be  done,  the  law  implies  a  promise  to  do 
it  in  the  usual  way,  and  that  it  shall  be  complete  and  effectual  for 
the  purpose  intended  :  Lane  v.  Pacific  &  I.  N.  R.  Co.,  8  Idaho  230,  67 
Pac.   Rep.   656. 

23  Kerr's  Cyc.  Civ.  Code.  §  1564. 

=*  McPherson  v.  San  Joaquin  County  (Cal.,  Marcli  24,  1899),  56  Pac. 
Rep.    802. 


175  CONSTRUCTION    OP    BUILDING    CONTRACTS.  §  226 

formed,  a  reasonable  time  is  allowed.-^  Likewise  as  to 
enlargement  of  time  to  perform ;  ^'^  and  what  is  such  reason- 
able time  is  a  question  of  law  for  the  eourt.^'^ 

§  226.  Warranty.  Where  a  contract  provides  that  when 
the  cut  of  a  ditch  is  sufficient  in  capacity  and  grade  to  carry 
all  the  waters  of  a  creek,  the  contractor  should  receive  com- 
pensation, and  he  guarantees  that  all  such  waters  should  run 
through  the  cut  for  a  certain  period  from  the  completion  of 
the  work,  such  guaranty  is  in  the  nature  of  a  warranty,  and 
he  may  recover  without  waiting  for  the  end  of  such  period, 
and  then  show  that  the  ditch  had  carried  all  the  water  at 
all  times.-^ 

Warranty  of  design  or  plan  under  express  specifications. 
Where  a  contract  provides  full  specifications  as  to  the 
manner  of  construction  of  an  elevator  and  as  to  material 
to  be  used  therein,  a  clause  that  the  work  should  be  done  in 
a  "  first-class,  workmanlike  manner,"  relates  merely  to  the 
work  as  specified  in  the  contract,  and  there  is  no  warranty 
that  the  specifications,  or  the  plan  or  design  of  the  elevator, 

-•'•  Kerr's  Cyc.  Civ.  Code,  §  1657,  and  note.  See  Luckhart  v.  Ogden, 
30  Gal.  547;    Hannan  v.  McNickle,   82  Cal.   122,   23  Pac.  Rep.   272. 

Colorado.  Where  no  time  is  specified  for  tlie  completion  of  tlie 
building,  it  will  be  presumed  that  a  reasonable  time  was  intended  : 
Walling-  V.  Warren,  L'  Colo.  434. 

\Va!4hlngtoii.     Brodek    v.    Farnum,    11   Wash.    565,    40   Pac.    Rep.    189. 

=«  Luckhart  v.  Ogden,  30  Cal.  547. 

='  Luckhart  v.  Og-den,  30  Cal.  547. 

^Vhere  the  law  defines  «"hat  is  a  reasouable  time,  or  the  question 
can  be  determined  by  application  of  rule  to  construction  of  instru- 
ment, question  is  one  for  the  court:  See  Railway  Co.  v.  Birnie,  59 
Ark.  7S,  79:  Earnshaw  v.  United  States,  146  U.  S.  60,  67,  bk.  36  L.  ed. 
887,   889,   13  Sup.  Ct.  Rep.   14. 

Jury  to  draw  Inference  from  facts  In  all  Other  cases  :  See  Luck- 
hart V.  Ogden,  supra;  Morris  v.  Wibaux,  159  111.  627,  646,  43  N.  E.  Rep. 
837. 

See  notes  17  Am.  Dec.  545:    69  Am.  Dec.  457. 

VVasliIngton.  Where  certain  lines  and  levels  for  the  work  were 
to  be  furnislied  on  a  certain  date  before  the  date  of  the  contract, 
but  were  not  so  furnished,  a  penal  clause  for  delay  was  ineffectual, 
for  the  reason  that  by  entering  on  the  work  after  the  failure  to 
comply  with  this  condition  precedent,  the  contractor  merely  obligated 
himself  to  complete  the  building  within  a  reasonable  time  :  Long  v. 
Pierce  Co.,  22  Wash.  330,  61  Pac.  Rep.  142,  148.  di.*«ting-iilNliing  Reichen- 
bach    V.   Sage,    13   Wash.   364,   43   Pac.   Rep.   354. 

*»  Gilliam   v.   Brown,    116   Cal.   454,   48   Pac.   Rep.    486. 


§§  227, 228  mechanics'  liens.  176 

are    first-class,    or    that    it    is    suitable    for    the    purposes 
intended.-® 

§  227.  Construction  of  statutory  original  contracts. 
Penalty.  Statutory  original  contracts,  and  alterations 
thereof,  under  the  California  statute,  must  conform  sub- 
stantially to  the  provisions  of  section  eleven  hundred  and 
eighty-four,^*'  relating  to  the  time  and  manner  of  payments. 
And  in  case  of  a  material  non-conformity  of  the  building 
contract  with  the  statute  in  parts  not  rendering  it  void,  the 
owner  becomes  subject  to  a  penalty,  which  every  reasonable 
intendment  must  be  made  to  avoid ;  ^^  and  a  dereliction  must 
be  clearly  shown  to  have  occurred.^^ 

§  228.  Instances  of  construction  of  contracts.^^  Under  a 
contract  for  the  construction  of  a  sea-wall  of  fixed  length, 

»  Bancroft  v.  San  Francisco  Tool  Co.,  120  Cal.  228,  231,  52  Pac.  Rep. 
496. 

30  Kerr's   Cyc.   Code   Civ.  Proc,   §  1184. 

31  San  Diego  L.  Co.  v.  Wooldredge,  90  Cal.  574,  579,  27  Pac.  Rep.  431; 
West  Coast  L.  Co.  v.  Knapp,  122  Cal.  79,  54  Pac.  Rep.  533.  See  Reed 
V.  Norton,  90  Cal.  590,  26  Pac.  Rep.  767,  27  Pac.  Rep.  426;  Stimson 
M.  Co.  V.   Riley    (Cal.),   42  Pac.  Rep.   1072. 

"Construction  of  Statutes,"   §§24-27,   ante. 

Colorado.  Where,  in  proceedings  under  a  mechanic's-lien  statute, 
the  question  concerns  only  the  right  of  the  contractor  to  assert  a  lien, 
an  alleged  prohibitory  clause  in  his  contract  must  be  construed 
strictly,  and  if  the  language  used  be  of  doubtful  import,  should  be 
construed  in  his  favor;  in  other  words,  the  prohibition  must  be 
clearly  expressed.  This  rule  applies  with  additional  and  far  greater 
force  when  the  original  contractor's  contract  is  invoked  to  cut  off  the 
lien  rights  of  subcontractors,  laborers,  and  material-men,  who  were 
not  parties  to  it  :    Aste  v.  Wilson,  14  Colo.  App.  323,  59  Pac.  Rep.  846. 

^  West  Coast  L.  Co.  v.  Knapp,  122  Cal.  79,  54  Pac.  Rep.  533. 

33  Construction  of  contract  as  to  deliverj-  of  order:  Pacific  R.  M. 
Co.  v.  English,   118  Cal.  123,  128,   50  Pac.  Rep.  383. 

Construction  of  contract  as  to  laying  floor:  See  Laidlaw  v.  Marye, 
133  Cal.   170,   65  Pac.  Rep.  391. 

Arizona.  Where  a  written  contract,  among  other  things,  provides 
for  certain  payments  for  "all  brick  laid  in  the  walls  of  the  building 
now  being  erected,"  etc.,  and  for  laying  them  according  to  plans  to 
be  furnished  by  the  architects,  and  stating  that  the  same  were  not 
then  completed,  and  the  contract  includes  the  brickwork  on  a 
kitchen,  an  oral  agreement  for  extra  payment  for  constructing  the 
kitchen  walls  cannot  be  sustained.  The  construction  of  a  written 
contract  cannot  be  submitted  to  the  jury:  O'Connor  v.  Adams  (Ariz.), 
59  Pac.  Rep.   105. 

Colorado.  Where  a  contract  provided  for  sinking  a  mining-shaft 
a  specified  additional  depth,  and  eighteen  feet  from  the  point  of  the 
commencement   of   the   work   the   shaft  was  sunk   off  and  away   from 


177  CONSTRUCTIOISr   OF   BUILDING    CONTRACTS.  §  228 

at  certain  prices  for  materials  used,  the  engineer's  estimates 
of  the  qualities  needed,  as  stated  in  the  notice,  bid,  and  speci- 

the  vein  of  ore,  in  the  country-rock,  there  is  no  agreement  to  sink  on 
the  vein,  especiaUy  where  the  owner  construes  the  contract  by 
paying,  witliout  objection,  the  amount  due,  when  the  shaft  was  at  a 
lower  depth:  Buckeye  M.  &  M.  Co.  v.  Carlson,  16  Colo.  App.  446,  66 
Pac.    Rep.    168. 

Idaho.  Where  a  contract  provides  for  a  fixed  penalty  for  delay, 
and  for  written  applications  to  architect  for  extensions  of  time  for 
completion  of  the  building,  and  delays  are  caused  bj-  the  architect,  as 
ag'ent  of  the  owner,  who  leads  the  contractors  to  believe  that  a  written 
application  would  not  be  required,  such  written  application  is  waived, 
and  no  deduction  from  the  contract  price  because  of  such  delays  will 
be  made  :  Huber  v.  St.  Joseph's  Hospital,  11  Idaho  631,  83  Pac.  Rep. 
768. 

Montana.  Contract  authorizing  railroad  company  to  stop  any  of 
the  work,  or  to  diminish  the  force  employed  by  the  contractor,  and 
requiring  contractor  to  do  so,  construed  not  to  allow  the  railroad 
company  to  stop  the  whole  work  temporarily,  to  be  resumed  later  on, 
or  to  cancel  contract  arbitrarily  without  cause:  Wortman  v.  Mon- 
tana Cent.  R.  Co..  22  Mont.  266,  56  Pac.  Rep.  316. 

Written  contract  to  furnish  certain  machinery  at  a  fixed  price, 
and  also  "  all  castings  required,  in  addition,"  at  a  stated  rate,  was 
construed  to  refer  to  the  castings  for  the  inachinery  described,  and 
not  to  castings  subsequently  purchased  under  other  contracts  :  A.  M. 
Holter  Hardware  Co.  v.  Ontario  M.  Co.,  24  Mont.  184,  61  Pac.  Rep.  3,  7. 

Oregon.  Where  a  contractor  was  to  keep  the  building  free  from 
liens  for  a  period  beyond  the  time  when  the  last  payment  was  due, 
freedom  of  t!ie  structure  from  such  liens  is  a  condition  precedent  to 
such  payment  :    Henry  v.  Hand,  36  Greg.  492,  59  Pac.  Rep.  330. 

AVashington.  "Where  a  contract  provides  that  "no  alterations  may 
be  made  in  the  work,  except  on  the  written  order  of  the  architect," 
a  mere  change  in  the  parties  doing  the  work  does  not  require  such 
order  :  Drumheller  v.  American  Surety  Co.,  30  Wash.  530,  71  Pac.  Rep. 
25,   26. 

Where  contract  requires  the  contractor  to  furnish  the  cut  for  an 
excavation  "  according  to  stakes  set  out  by  the  engineer,  and  to  his 
satisfaction,"  it  refers  to  stakes  then  in  place:  Olsen  v.  Snake  River 
V.  R.  Co.,  22  Wash.  139,  60  Pac.  Rep.  156. 

Where  the  contract  provided  that  all  the  walls  should  be  built 
of  ■' Wilkeson  stone,"  and  it  appeared  that  a  certain  quarry  was  the 
only  one  opened  at  the  time  the  contract  was  made,  the  contractor 
has  the  right  to  procure  the  stone  wherever  a  suitable  quality  is  to 
be  found,  as  the  specifications  describe  the  quality  and  grade  of 
stone,  and  not  the  particular  quarry:  Long  v.  Pierce  Co.,  22  Wash. 
330,   61   Pac.   Rep.   142,   151. 

A  contract  requiring  payment  to  be  made  only  for  materials 
actually  used  in  the  construction  of  a  canal,  does  not  entitle  the  con- 
tractor to  be  paid  for  materials  not  in  place,  but  merely  strung  along 
the  line  of  the  canal  :  Dyer  v.  Middle  Kittitas  Irr.  Dist.,  40  Wash.  238, 
82   Pac.   Rep.   301. 

Oral    notice    to    the    contractor    is    insufficient    where    tlie    contract 
requires   written    notice   of   defects:    Sweatt   v.   Hunt,    42   Wash.    96,    8 
Pac.    Rep.    1. 

Contract  for  preliminary  work  in  clearing  right  of  way  of  rail- 
road, construed  as  limiting  the  number  of  cords  of  wood  to  that  men- 
tioned in  the  contract  :  Eastham  v.  Western  Const.  Co.,  36  Wash.  7, 
77  Pac.   Rep.   1051. 

Mech.  Liens  —  12 


§  228  mechanics'  liens.  178 

fications,  do  not  require  the  purchase  of  or  payment  for  the 
exact  estimated  (jiiantities  of  materials,  whether  used  or  not, 
but  only  for  the  materials  actually  used  in  the  work,  and  it  is 
of  no  consequence  if  there  is  a  mistake  in  such  estimates."* 

Where,  by  the  terms  of  a  lease  of  oil-wells,  the  lessee 
agreed  to  erect  all  necessary  machinery,  and  furnish  at  its 
own  cost  all  materials  necessary  to  carry  on  the  work,  and  all 
labor  employed  in  the  development  and  production,  includ- 
ing all  labor  and  material  in  erecting  and  maintaining  fix- 
tures, the  lessor  agreeing  to  pay  half  of  the  cost  of  drilling, 
casing,  and  pumping  all  wells  of  a  certain  depth  which  did 
not  produce  a  fixed  amount  of  oil  per  day  for  a  stated  period, 
the  lessor  was  properly  chargeable  with  half  of  the  expense 
of  all  the  preliminary  work  of  preparing  the  ground,  erect- 
ing the  derrick,  placing  and  connecting  the  engine,  drilling- 
rig,  and  the  entire  cost  of  the  well  from  the  time  the  first 
work  was  begun  on  the  ground  until  the  niachiner}'  was 
removed,  when  it  was  abandoned,  including  the  expense  of 
removal,  and  also  half  of  the  reasonable  value  of  the  use  of 
the  machinery  used,  owned,  and  furnished  bj^  the  lessee.'^ 

Water  company  contracting  to  supply  water,  but  relieved 
from  liability  in  case  such  delivery  should  be  lawfully  or 
forcibly  restrained,  or  prevented  by  hostile  diversion  or 
obstruction,  is  not  liable  when  non-delivery  is  caused  by 
reason  of  the  filling  up  of  its  canal  by  the  road  authorities 
and  by  injunction.^*' 

Original  contractor,  having  furnished  the  materials  and 
performed  the  work  up  to  a  certain  stage,  when  he  abandons 
it,  is  conclusively  bound  to  know  of  all  defects  in  the  existing 
materials  and  workmanship,  and  is  bound,  under  his  con- 
tract, to  correct  them;  but  a  new  contractor,  who  under- 
takes to  finish  the  contract  after  the  abandonment,  is  not 
bound  to  know  of  defects  that  are  not  known  or  apparent  to 
a  skilful  observer  when  he  entered  upon  his  contract,  and 
the  correction  of  such  defects  is  not  covered  by  his  con- 

■■■■*  Hackett  V.  State,  103  Cal.  144,  37  Pac.  Rep.  156. 
Term  "more  or  less,"  construction  of:  See  Hackett  v.  State,  supra. 
»•'■  Far  West  O.  Co.  v.  Witmer  Bros.  Co..  143  Cal.  306,  77  Pac.  Rep.  61. 
»«  Fresno  M.  Co.  v.  Fresno  C.  &  I.  Co.,  126  Cal.  640,  59  Pac.  Rep.  140. 


179  CONSTRUCTION    OP    BUILDING    CONTRACTS.  §  228 

tract. ^'  Where  a  party  agrees  to  erect  a  building,  and  certain 
amounts  are  to  be  paid  in  instalments  as  the  building  pro- 
gresses, and  at  its  completion  he  is  "  to  take  the  second 
party's  note,  .  .  .  payable  twelve  months  after  date,  or 
before  if  the  party  of  the  second  part  wishes  to  do  so,"  the 
clause,  "  if  the  party  of  the  second  part  wishes  to  do  so," 
relates  to  the  time  when  the  note  shall  be  payable,  and  the 
second  party  has  not  the  option  of  giving  the  note.^* 

Under  a  contract  containing  clauses  for  deviations  from 
the  specifications,  by  the  contractor,  to  be  made  at  the 
owner's  request,  and  particularly  for  "  omissions  from  said 
contract,"  which  "  shall  in  no  way  affect  or  make  void  the 
contract,  but  shall  be  added  to  or  deducted  from  the  amount 
of  the  contract,  as  the  case  may  be,  by  a  fair  and  reasonable 
valuation."  the  meaning  is  clear,  without  the  aid  of  extrinsic 
evidence,  and  such  "  omissions  "  do  not  refer  to  something 
which- is  to  be  entirely  left  out  of  the  building,  and  not  to  be 
put  there  by  the  contractor  or  owner,  and  which  the  owner 
might  elect  to  take  off  the  contractor's  hands  and  perform 
or  finish  himself.^'' 

^'  Long  Beach  School  Dist.  v.  Dodg-e,  135  CaL  401,  406,  67  Pac.  Rep. 
499. 

'■^  O'Connor  v.  Ding-ley.  26  Cal.  11,  18,  3  West  Coast  Rep.  197. 
"»  Snaver  v.  Murdock,  36  Cal.  293,  296. 


§§229,230  mechanics'  liens.  180 


CHAPTEK    XIII. 

BUILDING  CONTRACTS   (CONTINUED).   COMMON  CLAUSES 
PECULIAR  TO  BUILDING  CONTRACTS.  IN  GENERAL. 

§  229.  Scope  of  chapter. 

§  230.  Arbitration  clause.     California. 

§  231.  Same.     Agreement  to  arbitrate  not  final. 

§  232.  Same.     When   procuring   award    condition    precedent   to   re- 
covery. 

§  233.  Same.     Distinction  between  two  classes  of  cases. 

§  234.  Same.     Submission  to  arbitration  revocable. 

§  235.  Same.     Good  faith  and  open  dealings  of  arbitrators. 

§  236.  Estimates. 

§  237.  Liquidated  damages, 

§  238.  Certificates. 

§  239.  Certificate,  when  excused. 

§  240.  Waiver  of  certificate. 

§  241.  Same.     Dismissal  of  architect. 

§  242.  Conclusiveness  of  certificate. 

§  243.  Extra  work.     Generally. 

§  244.  Same.     Definition. 

§  245.  Same.     Extra  work  provided  for  in  contract. 

§  246.  Same.     Contract  in  writing. 

§  247.  Same.     Verbal  alteration  of  original  contract. 

§  248.  Same.     Estoppel. 

§  249.  Same.     Arbitration. 

§  250.  Same.     Void  contract. 

§  251.  Payments.     How  considered  herein. 

§252.  Same.     Conditions  precedent. 

§  253.  Same.     Waiver. 

§  254.  Same.     Application  of  payments. 

§  255.  Liens.     Statutory  provision.     California. 

§  256.  Same.     Condition  precedent. 

§  257.  Same.     Public  property. 

§  229.  Scope  of  chapter.  In  this  chapter  will  be  consid- 
ered those  clauses  Avhich  are  usually  found  in  building  con- 
tracts, their  construction  and  effect. 

§  230.  Arbitration  clause.  California.  Persons  capable  of 
contracting  may  submit  to  arbitration  any  controversy  which 


181  BUILDING    CONTRACTS COMMON    CLAUSES.      §§231,232 

might  be  the  subject  of  a  civil  action  between  them,  except  a 
question  of  title  to  real  property  in  fee  or  for  life ;  but  this 
qualification  does  not  include  questions  relating  merely  to  the 
partition  or  boundaries  of  real  property.^  The  submission  to 
arbitration  must  be  in  writing,  and  may  be  to  one  or  more 
persons.-  It  may  be  stipulated  in  the  submission  that  it  maj^ 
be  made  an  order  of  superior  court,  for  which  purpose  it 
must  be  filed  with  the  clerk  of  the  county  where  the  parties, 
or  one  of  them,  reside,  and  the  statutory  proceedings  be  had 
thereon.^  But  an  agreement  to  submit  a  matter  to  arbitra- 
tioti  will  not  be  specifically  enforced.* 

§  231.  Same.  Agreement  to  arbitrate  not  final.  It  now 
seems  to  be  the  settled  law  that  an  agreement  to  refer  a  case 
to  arbitration  will  not  be  regarded  by  the  courts,  and  they 
will  take  jurisdiction  and  determine  the  dispute  between  the 
parties,  notwithstanding  an  agreement  to  refer  the  matter  to 
arbitrators.^ 

§  232.  Same.  When  procuring  award  condition  precedent 
to  recovery.  But  when  the  agreement  is  that  the  covenantor 
shall  pay  such  sura,  and  only  such  sum,  as  shall  be  deter- 
mined by  arbitrators,  procuring  an  award  is  as  clearly  a 
condition  precedent  to  an  action,  as  if  the  parties  had  added 
the  clause,  "  and  no  action  shall  be  maintainable  until  after 
the  award  of  the  arbitrators  " ;  *^  and  this  is  so  regarding  a 

>  Kerr's  Cyo.  Code  Civ.  Proc,  §1281,  and  note. 
»  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1282,  and  note. 
"  Kerr's  Cyc.  Code  Civ.  I'roc,  §§  1283-1290,  and  notes. 

*  Kerr's  Cyc.  Civ.  Code,  §  3390,  subd.  3,  and  note. 

*  Oregon.     See  Savage  v.  Glenn,  10  Greg.  440. 

*  See  California  cases  in  next  note,  post. 

Idaho.  Every  stipulation  or  condition  in  a  contract  by  which  any 
party  thereto  is  restricted  from  enforcing  his  rights  under  the  con- 
tract by  the  usual  proceedings  in  the  ordinary  tribunals  is  void:  so 
held  with  reference  to  a  provision  for  referring  disputed  matters  to 
arbitration,  the  decision  to  be  final,  the  distinction  from  cases  decided 
in  other  states  being  that  in  this  contract  the  award  was  to  be  rtnal: 
Ruber  v.  St.  Joseph's  Hospital,  11  Idaho  631,  83  Pac.  Rep.  768  (under 
§  3229,    Rev.    Stats.). 

Montana.  Under  §  2245,  Civ.  Code  of  1895,  the  provision  of  a  con- 
tract by  which  the  construction  to  be  placed  on  it  by  the  agent  of 
one  of  the  parties  should  be  final,  without  a  right  of  appeal  to  the 
courts,  held  void  :  Wortman  v.  Montana  Cent.  R.  Co.,  22  Mont.  266, 
56  Pac.  Rep.  316. 


§  233  mechanics'  liens.  182 

building  contract  containing  a  clause  that  if  any  dispute 
should  arise  respecting  the  true  value  of  the  extra  work,  the 
same  should  be  valued  b}'  arbitration." 

This  rule  is  especially  applicable  where  there  is  no  request 
or  attempt  to  arbitrate,  or  where  no  excuse  is  shown  for  not 
having  made  such  request  or  attempt.^ 

§  233.     Same.     Distinction  between  two  classes  of  cases. 

The  distinction  between  the  two  classes  of  cases  mentioned 
in  the  preceding  section  is,  that,  in  one  case,  the  parties  un- 
dertake by  an  independent  covenant  or  agreement  to  provide 
for  the  adjustment  and  settlement  of  all  disputes  and  differ- 
ences by  arbitration,  to  the  exclusion  of  the  courts ;  and  in 
the  other,  they  merely,  by  the  same  agreement  which  creates 
the  liability-  and  gives  the  right,  qualify  the  right,  by  provid- 
ing that,  before  any  right  of  action  shall  accrue,  certain  facts 
shall  be  determined,  or  amounts  or  values  ascertained,  and 
this  is  made  a  condition  precedent,  either  in  terms  or  by 
necessary  implication.^ 

Oregon.  Right  to  have  alterations  valued  by  arbitrators  waived 
by  not  pleading-  it  in  abatement  :  Chamberlain  v.  Hibbard,  26  Oreg. 
428,    38   Pac.   Rep.    437. 

Waithingrton.  W'here  a  building  contract  provided  that  in  case  of 
any  doubt  or  question  as  to  the  plans  and  specifications,  the  decision 
of  the  architects,  "being  just  and  impartial,"  should  be  conclusive, 
and,  prior  to  the  commencement  of  the  work,  the  architects,  un- 
known to  the  contractor,  delivered  to  the  county  a  bond  to  keep 
the  cost  of  the  building  below  a  certain  figure,  the  decision  of  the 
architects  is  not  conclusive:  Long  v.  Pierce  Co.,  22  Wash.  330,  61  Pac. 
Rep.   142,   151    (as  to  extra  work). 

A  subnii.ssion  to  arbitration  witliout  protest  on  the  part  of  the 
owner  that  the  contractor  has  lost  his  right  to  object  is  a  waiver 
thereof:   Brown's  Exrs.   v.   Farnandis,    27  Wash.   232,   67   Pac.   Rep.   574. 

'  Holmes  v.  Richet,  56  Cal.  307,  312,  38  Am.  Rep.  54;  Cox  v.  Mc- 
Laughlin, 63  Cal.  196,  207,  14  Pac.  Rep.  98;  Scammon  v.  Denis,  72  Cal. 
393  ("no  request  or  offer"  to  submit  to  arbitration);  Loup  v.  Cali- 
fornia So.  R.  Co.,  63  Cal.  97,  101  (estimate  by  engineer  of  the  value 
of  the  work  done).  See.  as  to  evidence  of  referee  not  being  conclu- 
sive, McFadden  v.  O'Donnell,  18  Cal.  160. 

^  Gray  v.  La  Soci6t6  Frangaise  de  B.  M.,  131  Cal.  566,  57],  63  Pac. 
Rep.  848  (see  this  case  for  distinction  between  arbitration  as  to  the 
value  of  extra  work  and  whether  extra  work  falls  within  arbitration 
clause). 

See  "  Extra  W'ork."  §  249.   post. 

»  Holmes  v.  Richet,  56  Cal.  307,  312,  38  Am.  Rep.  54;  Loup  v.  Cali- 
fornia So.  R.  Co.,  63  Cal.  97.  102.  See  California  M.  E.  Church  v.  Seitz, 
74  Cal.  287,  292.  15  Pac.  Rep.  839:  Castagnino  t.  Balletta,  82  Cal.  250, 
260,  23  Pac.  Rep.  127;  and  Downing  v.  Graves,  55  Cal.  544,  550. 


183  BUILDING    CONTRACTS  —  COMMON    CLAUSES.     §§234,235 

§  234.     Same.     Submission  to   arbitration  revocable.     A 

stipulation  for  submitting  the  matters  in  controversy  to  arbi- 
tration, which  contains  no  provision  by  which  an  order  of 
court  can  be  made  upon  it,  and  which  is  not  made  an  order  of 
court,  may  be  revoked  at  any  time  before  the  award  is 
made.^° 

§  235.     Same.  Good  faith  and  open  dealings  of  arbitrators. 

The  arbitrator  or  umpire  is  required  to  act  in  the  highest 
good    faith "    as    to    the    matters    within    the    arbitration 

Colorado.  See  Denver,  S.  P.  &  P.  Co.  v.  Riley,  7  Colo.  494,  4  Pac. 
Rep.    785. 

Idaho.  And  where  it  is  agreed  that  payments  shall  be  made  upon 
estimates  of  a  certain  engineer,  a  party,  to  recover  more,  musi  allege 
and  prove  fraud  or  mistake:  Thompson  v.  Bradbury,  5  Idaho  760,  51 
Pac.    Rep.    758. 

Montana.  A  clause  in  a  contract,  that  the  engineer  of  a  railway 
company  shall  be  the  arbiter  as  to  whether  certain  work  has  been 
done  in  accordance  with  the  contract,  is  valid:  Wortman  v.  Montana 
Cent.   R.  Co.,   22  Mont.   266,   56  Pac.  Rep.   316. 

Oregon.  See  Meyers  v.  Pacific  Cons.  Co.,  20  Oreg,  663,  27  Pac.  Rep. 
584. 

>Va.sliin8ton.  Arbitration  condition  precedent  to  action,  where 
plaintiff  has  not  offered  to  arbitrate,  or  has  refused  to  do  so:  Child2 
L.  &  M.  Co.  V.  Page,  28  Wash.  128,  68  Pac.  Rep.  373;  Zindorf  Const.  Co. 
v.  Western  A.  Co.,  27  Wash.  31,  67  Pac.  Rep.  374;  Hughes  v.  Bravinder, 
9  Wash.  595,  38  Pac.  Rep.  209,  s.  c.  14  Wash.  304,  44  Pac.  Rep.  530:  Van 
Hook  V.  Burns,  10  Wash.  22,  38  Pac.  Rep.  763.  And  see  De  Mattos  v. 
Jordan,  15  Wash.  378,  46  Pac.  Rep.  402;  Van  Home  v.  Watrous,  10 
Wash.  525,  39  Pac.  Rep.  136;  Skagit  Co.  v.  Trowbridge  (Wash.),  64 
Pac.  Rep.  901;  School  Dist.  v.  Sage,  13  Wash.  352,  43  Pac.  Rep.  341. 

Where  a  contract  provides  that,  in  case  of  delay  in  furnishing  cer- 
tain material,  the  owner  may  determine  the  amount  of  damages 
therefor,  and  have  the  matter  submitted  to  arbitrators,  to  be  selected 
by  the  parties,  in  case  the  claim  be  disputed  by  the  contractor,  where 
such  contractor  takes  no  steps  to  arbitrate,  and  the  owner  fixes  the 
amount  of  the  damages  from  delay,  and  informs  the  contractor,  de- 
fenses to  the  claim  of  damages  cannot  be  set  up  by  the  contractor  in 
a  suit  for  the  price,  when  the  same  could  have  been  arbitrated,  and 
he  can  recover  only  any  amount  due  in  excess  of  the  damages  so 
fixed:  Childs  L.  Co.  v.  Page,  32  Wash.  250,  73  Pac.  Rep.  353,  28  Wash. 
128,   68   Pac.   Rep.    373. 

'"  Sidlinger  v.  Kerkow,  82  Cal.  42,  46,  22  Pac.  Rep.  932.  See  Mc- 
Fadden   v.   O'Donnell,    18   Cal.   160. 

Kerr's  Cyc.  Code  Civ.  Proe.,  §  1283,  and  note. 

WaMhini^ton.  But  see  Hughes  v.  Bravinder,  9  Wash.  595,  38  Pac. 
Rep.    209. 

See  §  249,  post. 

"  Idaho.  Where  a  contract  for  railroad  construction  provides  tliat 
the  engineer  of  the  company  shall  act  as  umpire,  and  shall  finally 
decide  the  amount  and  character  of  the  work  and  material  furnished, 
the  company  is  bound  to  employ  a  thoroughly  competent  and  honest 
engineer,  and  see  that  he  performs  his  duties  fairly  and  honestly  : 
Spaulding  v.  Cujur  D'Alene  R.  &  N.  Co.,   5  Idaho  528,  51  Pac.  Rep.   408. 


§  235  mechanics'  liens.  184 

clause ;  ^-  3'et  where  the  contractor  was  to  receive  a  fixed 
price  for  his  work,  whether  the  variations  which  the  engi- 
neer, under  permission  of  the  contract,  might  make  should 
make  the  work  heavier  or  lighter,  and  a  secret  agreement 

Montana.  Where  a  contract  names  the  chief  engineer  as  arbi- 
trator, whose  judgment  shall  determine  that  an  exigency  has  arisen 
to  justify  the  termination  of  the  contract,  it  is  Implied  that  this 
judgment  shall  be  exercised  in  good  faith:  Wortman  v.  Montana  C.  R. 
Co.,   22   Mont.   266,   56   Pac.   Rep.   316,    320.  • 

Washington.  While  arbitrators  are  not  required  to  proceed  with 
the  formalities  of  a  court,  yet  they  must  proceed  in  such  manner  as 
to  give  a  full  hearing  to  each  of  the  parties,  not  only  upon  the  several 
items  of  the  claim  presented  by  himself,  but  also  upon  the  claim  of 
his  adversary,  and  upon  the  evidence  adduced  in  support  of  that 
claim.  This  they  cannot  do  without  hearing  the  party  and  his  wit- 
nesses in  the  presence  of  the  opposing  party.  Unless  this  right  is 
waived  by  the  party,  either  in  the  agreement  of  submission,  or  by- 
conduct  amounting  to  a  waiver,  the  award  made  under  such  circum- 
stances is  clearly  void.  The  arbitrators  should  receive  no  communi- 
cation from  either  party  without  letting  the  other  party  know;  they 
should  make  no  inquiries  from  the  witnesses  on  either  side,  no  matter 
how  immaterial  the  point,  after  the  hearing  is  closed.  A  departure 
from  the  strict  rule  of  dealing  equally  with  both  sides  will  be  fatal 
to  the  award  :  Brown's  Exrs.  v.  Farnandis,  27  Wash.  232,  67  Pac.  Rep. 
574. 

The  court  will  set  aside  an  arbitration  as  to  the  amount  due  for 
materials  and  extra  work,  and  for  delay  in  completing  a  building 
contract,  where  the  arbitrators,  owing  to  an  altercation  between  tho 
parties,  respecting  the  matter  in  controversy,  directed  them  to  leave, 
the  altercation  not  being  so  serious  that  they  could  not  have  been 
heard,  and  they  not  being  given  an  opportunity  to  be  heard,  as  the 
arbitrators  were  not  sufficiently  informed  in  the  premises,  and  the 
award  was  unfair,  although  not  fraudulent  :  McDonald  v.  Lewis,  18 
Wash.   300,   51   Pac.  Rep.   387. 

Meeting  before  and  presenting  claim  to  arbitrator:  See  Hughes  V. 
Bravinder,    9   Wash.   595,   38   Pac.   Rep.    209. 

Alterations.  Value  to  be  computed  by  architect.  Where  the  value 
of  any  alterations  was  to  be  computed  by  the  architect,  under  the 
terms  of  the  contract,  and  might  be  referred  to  arbitrators,  if  the 
contractor  was  dissatisfied  with  architect's  award,  and  it  was  so  re- 
ferred, the  parties  being  heard  separately  by  the  arbitrators,  who 
permitted  them  to  explain  their  claims,  but  did  not  pass  on  the  merits 
of, demands  for  some  alterations,  as  the  contractor  had  failed  to  object 
to'  the  architect's  computations  when  they  were  submitted  to  him 
with  the  order  for  the  alterations,  the  contractor's  right  to  dissent 
was  not  waived,  because  not  done  when  such  computations  were  sub- 
mitted to  him  with  such  order,  and  the  award  was  not  conclusive,  and 
could  be  reopened  by  evidence  in  a  suit  against  the  contractor  on  his 
bond  :    Brown's  Exrs.  v.  Farnandis,  27  Wash.  232,  67  Pac.  Rep.  574. 

"  Washington.  Where  a  provision  for  arbitration  relates  to  the 
increased  or  decreased  cost  occasioned  by  alterations,  reviewing  the 
architect's  certificate  in  the  matter  of  the  extension  of  time,  and 
damages  sustained  by  either  party  on  account  of  delay,  the  owner 
may  recover  from  the  contractor  the  expenses  incurred  in  completing 
a  foundation-wall  and  repairing  a  cave  in  the  street,  caused  by  exca- 
vating the  foundation,  they  not  being  within  such  provision:  Main 
Inv.  Co.  V.  Olsen    (Wash.),   86  Pac.  Rep.   1112. 


185  BUILDING    CONTRACTS — COMMON    CLAUSES.  §236 

was  made  with  the  engineer  to  give  him  a  share  of  the  profits 
to  make  such  variations,  whenever  possible,  as  would  make 
the  work  less  expensive,  without  doing  anything  to  the  dis- 
advantage of  the  railroad  company  employing  the  engineer, 
the  contractor  may  recover  the  reasonable  value  of  his  work, 
although  such  arrangement  was  improper.^'' 

§  236.  Estimates.^*  This  is  somewhat  involved  in  the  mat- 
ter contained  in  the  preceding  sections.  Where  the  method 
of  measurement  of  the  cubic  contents  of  an  embankment  is 

Where  liquidated  damages  for  delay  in  completion  are  provided 
for,  and  that  alterations  should  not  be  made  except  on  a  written 
order  of  the  architect,  and  when  so  made  the  value  of  the  work 
added  or  omitted  should  be  computed  by  the  architect,  and  the 
amount  so  ascertained  be  added  to  or  deducted  from  the  contract 
price,  and  in  case  of  dissent  from  such  award  by  either  party,  the 
valuation  of  the  work  added  or  deducted  should  be  referred  to  three 
disinterested  arbitrators,  to  be  appointed  in  a  certain  manner,  and  if 
the  contractors  sliould  be  delayed  by  the  owner  or  for  other  reasons 
specified,  the  time  of  completion  should  be  extended  for  the  same 
period,  but  claim  for  such  extension  to  be  made  to  the  architect  in  a 
certain  manner,  with  the  right  of  appeal  to  arbitration,  submission 
to  the  architect  or  arbitrators  of  the  damages  caused  by  the  failure 
of  the  contractors  to  complete  the  building  within  the  prescribed 
time  was  not  required:  Drumheller  v.  American  Surety  Co.,  30  Wash. 
530,   71   Pac.   Rep.    25. 

"  Cox  V.  McLaughlin,  76  Cal.  60,  64,  18  Pac.  Rep.  100,  9  Am.  St. 
Rep.    164. 

"  Estimates:  See  Valley  L.  Co.  v.  Struck,  146  Cal.  266,  271,  80  Pac. 
Rep.    405. 

Appro vul  and  a.s.sigaability  of  estimates:  See  Newport  W.  &  L.  Co. 
V.   Drew,    125   Cal.    585.    58    Pac.    Rep.    187. 

Estimates  I>y  memlier  of  board  of  tru.stees,  who  is  the  president  of 
a  bank,  which  is  the  assignee  of  an  instalment:  See  Newport  W.  &  L. 
.Co.  V.  Drew,   125  Cal.   585,  591,   58  Pac.  Rep.   187. 

Utah.  Fraudulent  estimates  :  See  Garland  v.  Bear  L.  &  R.  W.  & 
Irr.  Co.,  9  Utah  350,  34  Pac.  Rep.  368. 

'Wa»)liing;tou.  Where  a  contract  specially  provides  that  the  en- 
gineer should  define  the  meaning,  intent,  and  purport  of  the  plan.« 
and  specifications,  and  that  his  decision  in  all  cases  should  be  final, 
the  clause  does  not  confer  on  the  engineer  the  power  to  vary  the 
meaning  of  plain  terms  used  in  the  contract,  and  his  estimate  as  to 
the  work  done  and  materials  used  is  not  conclusive,  althougli  it 
may  be  prima  facie  evidence  thereof,  where  there  is  no  provision  In 
the  contract  making  it  conclusive  evidence:  Dyer  v.  Middle  Kittitas 
Irr.  Dist.,  40  Wash.  238,  82  Pac.  Rep.  301. 

In  an  action  by  the  constructor  of  an  irrigation-ditch  for  a  balance 
due  under  a  contract  requiring  the  estimates  of  work  done  as  re- 
turned by  the  engineer  to  be  approved  by  the  board  of  directors  of 
the  district,  such  approval  was  not  an  essential  to  recovery,  where 
the  failure  to  approve  was  purely  arbitrary  :  Dyer  v.  Middle  Kittitas 
Irr.  Dist.,  25  Wash.  80,  64  Pac.  Rep.  1009,  s.  c.  40  Wash.  238,  82  Pac. 
Rep.    30L 


§  237  mechanics'  liens.  186 

sufficiently  accurate  for  practical  purposes,  although  not 
according  to  the  exact  formula,  and  is  shown  to  be  used  by 
some  engineers,  under  the  claim  that  the  difference  between 
such  method  and  the  exact  formula  is  not  sufficient  to  pay  for 
making  the  extra  calculation,  the  court  was  held  justified  in 
accepting  the  computation.^^ 

§  237.  Liquidated  damages."  Every  contract  by  which 
the  amount  of  damage  to  be  paid,  or  other  compensation  to  be 
made,  for  a  breach  of  an  obligation  is  determined  in  anticipa- 
tion thereof,  is  to  that  extent  void,^^  except  that  the  parties 
to  a  contract  may  agree  therein  upon  an  amount  which  shall 
be  presumed  to  be  the  amount  of  damage  sustained  by  a 
breach  thereof,  when,  from  the  nature  of  the  case,  it  would 
be  impracticable  or  extremely  difficult  to  fix  the  actual 
damage. ^^  So  a  clause  in  a  bond  of  a  contractor,  that  if  the 
building  was  not  completed  by  a  certain  day,  the  sureties 
should  pay  the  owner  a  certain  amount  as  liquidated  dam- 
ages for  each  day's  delay,  is  not  alone  enough,  without  a 
showing  that  it  was  impracticable  or  extremely  difficult  to 
fix  the  actual  damages  on  account  of  the  delay,  to  enable 
the  owner  to  recover  such  liquidated  damages. ^^ 

1^  Scanlan  v.  San  Francisco  &  S.  J.  R.  Co.,  128  Cal.  586,  61  Pac.  Rep. 
271. 

'^  As  to  liquidated  damai^es,  see  Pogue  v.  Kaweah  P.  &  W.  Co..  138 
Cal.   664,   72   Pac.   Rep.   144. 

"  Kerr's  Cyc.  Civ.  Code,  §  1670,  and  note. 

"  Kerr's  Cyo.  Civ.  Code,  §  1671,  and  note.  See  also  Lony  Beacli 
City  School  Dist.  v.  Dodge,  135  Cal.  401,  405,  67  Pac.  Rep.  499. 

i»  Patent  Brick  Co.  v.  Moore,  75  Cal.  205,  208.  16  Pac.  Rep.  890; 
Muldoon   V.   Lynch,   66  Cal.   536,   6   Pac.   Rep.   417. 

Colorado.  Under  a  contract  for  the  erection  of  eight  houses  for 
twenty-one  thousand  two  hundred  dollars,  to  be  completed  within  a 
certain  time,  provided  that  if  the  contractor  "  fail  to  complete  the 
work  upon  any  of  said  liouses,  ...  it  shall  pay  .  .  .  the  full  sum  of 
five  dollars  per  day  for  each  and  every  day  thereafter  that  the  work 
upon  either  of  the  said  houses  shall  remain  unfinished,  ...  as  liqui 
dated  damages,"  the  payment  is  not  five  dollars  per  day  for  each 
house  :  Denver  L.  &  S.  Co.  v.  Rosenfeld  Const.  Co.,  19  Colo.  539,  36 
Pac.    Rep.    146. 

W  asliiu)!;ton.  Stipulations  for  liquidated  damages  are  generally 
inserted  in  building  contracts  for  the  sole  purpose  of  avoiding  the 
possible  or  probable  difl^culty  of  proving  the  exact  damage  that  may 
result  from  a  breach  of  the  contract;  and  where  such  agreements 
are  deliberately  and  intentionally  entered  into,  they  are  binding 
upon  the  parties,  and  will  be  upheld  by  the  courts:  hut  it  some- 
times   happens    tliat    provisions    apparently    for    liquidated    damages 


187  BUILDING    CONTRACTS  —  COMMON    CLAUSES.  §  238 

§  238.  Certificates.2°  The  code  itself  does  not  require  any 
acceptance  by  the  architect,  nor  a  certificate  of  such  accept- 
ance, and  makes  no  reference  to  that  subject.^^ 

The  contract  often  provides  for  the  certificate  of  an  archi- 
tect or  other  supervising  person  as  to  the  state  of  the  work, 
and  such  may  be  a  condition  precedent  to  payments.-^  Thus 
where  the  contract  provides  for  estimates  by  an  engineer, 
during  the  progress  of  the  work,  as  to  its  amount  and  value 
according  to  the  contract  price,  and  that  on  completion  of 

are  really  nothing  but  stipulations  for  penalties  or  forfeitures, 
ag-alnst  which  the  courts  will,  in  proper  cases,  grant  relief.  While 
courts  of  equity  afford  relief  against  penalties,  yet  they  cannot  relieve 
against  liquidated  damages:  Drumheller  v.  American  Surety  Co.,  30 
Wash.  530,  71  Pac.  Rep.  25,  30.  See  Reichenbach  v.  Sage,  13  Wash. 
364,  43  Pac.  Rep.  354,  52  Am.  St.  Rep.  51;  Jennings  v.  McCormick,  25 
Wash.  427,  65  Pac.  Rep.  764.  Also  Young  v.  Gaut,  69  Ark.  114,  61 
S.  W.  Rep.   372. 

But  where  a  contract  provides  for  ten  dollars  per  day  of  delay 
as  damages,  it  was  sai"d:  "There  has  been  some  conflict  of  authority 
on  this  question,  each  case,  however,  necessarily  being  decided  with 
reference  to  its  own  particular  circumstances  and  the  particular 
language  of  the  contract.  We  are  satisfied,  however,  that  the  over- 
whelming weight  of  authority  sustains  the  contention  that  tliis 
contract  provides  for  liquidated  damages.  There  is  nothing  inequi- 
table in  the  terms  of  this  provision.  The  amount  does  not  seem  to 
us  to  be  excessive  or  unreasonable.  It  does  not  provide  for  the 
payment  of  a  sum  in  gross  on  the  failure  to  comply  with  the  con- 
tract at  the  expiration  of  the  time  limited,  but  the  damages  accrue 
according  lo  the  length  of  time  the  breach  continues;  and  again, 
there  is  an  element  of  uncertainty  as  to  the  real  damages  which 
would  be  sustained  by  the  plaintiff,  which  renders  it  more  or  less 
impracticable  to  be  determined  by  a  jury.  Values  of  rents  are  fluctu- 
ating, and  dwelling-houses  of  the  character  and  description  of  tliis 
one  are  ordinarily  not  built  for  rent  at  all,  but  for  the  convenience 
and  comfort  of  the  owners,"  etc.;  quoting  from  various  cases: 
Reichenbach  v.  Sage,  13  Wash.  364,  43  Pac.  Rep.  354,  52  Am.  St.  Rep.  51. 

^  See,  generally,   note  56  Am.  St.   Rep.   312. 

Washington.  Letter  construed  as  a  certiflcate:  Washington 
Bridge  Co.  v.  Land  &  R.  Imp.  Co.,  12  Wash.  272,  40  Pac.  Rep.  982. 

21  Valley  L.  Co.  v.  Struck,  146  Cal.  266,  270,  80  Pac.  Rep.  405. 

"  See  §  232,  ante,  and  §  252,  post. 

Failure  to  obtain  certificate:  See  Wyman  v.  Hooker,  2  Cal.  App. 
36,   38,   83   Pac.   Rep.    79. 

Montana.      McGlauflin  v.  Wormser,  28  Mont.  177,  72  Pac.  Rep.  428. 

Oklahoma.  Payment  on  estimates  of  architect:  See  American 
Surety  Co.  v.  Scott  &  Co.  (Okl.).  90  Pac.  Rep.  7. 

Oregon.  Approval  of  work  by  architect,  without  being  misled  or 
Imposed  upon,  and  refusal  thereafter  to  give  certiflcate  of  flnal 
completion:  See  Vanderhoof  v.  Shell,  42  Oreg.  578,  72  Pac.  Rep. 
126.   129. 

ProeurinK  certificate  of  completion  required  by  contract  is  con- 
dition precedent  to  recovery,  unless  it  is  waived  or  the  contractor 
cannot  produce  it  througli  no  fault  of  his:  Vanderhoof  v.  Shell,  42 
Oreg.   578,   72  Pac.  Rep.    126. 


§  239  mechanics'  liens.  188 

the  work  the  engineer  shall  make  a  final  estimate  of  all  the 
work  done,  and  that  the  balance  due,  after  deducting  the 
previous  payments,  shall  thereupon  be  paid  by  the  defend- 
ant, such  estimates  are  necessary,  in  order  to  found  an 
action.-^  And  so  the  certificate  of  the  architect,  of  expenses 
incurred  by  owner  upon  abandonment  of  contract,  as  against 
sureties,  is  a  condition  precedent  to  recovery.^* 

§  239.  Certificate,  when  excused.  Certificate  by  architect 
should  not  be  fraudulently  or  captiously  withheld ;  ^^  and  if 
the  architect  withholds  the  certificate  without  just  cause, 
upon  demand,  or  does  so  fraudulently  or  corruptly  or  by 
mistake,  upon  proper  pleadings  the  condition  in  the  contract 
requiring  such  certificate  before  the  right  to  payment  arises 
will  not  be  exacted.^*' 

=»  Loup  V.  California  So.  R.  Co.,  63  Cal.  97,  102.  See  Holmes  v. 
Richet,  56  Cal.  307,  38  Am.  Rep.  54;  Cox  v.  McLaughlin,  63  Cal.  207; 
Ball  V.  Doud,  26  Oreg:.  14,  20,  37  Pac.  Rep.  70;  Sullivan  v.  Susong,  30 
S.  C.  305.  323,  9  S.  E.  Rep.  156;  Scottish  U.  &  N.  Ins.  Co.  v.  Clancy, 
83  Tex.  113,  115,  18  S.  W.  Rep.  439.  Also  Smith  v.  Briggs,  3  Den. 
(N.  Y.)  73;  Herrick  v.  Belknap,  27  Vt.  673;  Morgan  v.  Birnie,  9 
Bing.  672;  Elliot  v.  Royal  Ex.  Assur.  Co.,  L.  R.  2  Ex.  245. 

See   "Arbitration,"    §230,   ante. 

^Vastaington.  But  where  the  work  has  been  completed  in  sub- 
stantial compliance  with  the  contract,  such  certificate  cannot  right- 
fully be  refused:  W^ashington  Bridge  Co.  v.  Land  &  R.  Imp.  Co., 
12  Wash.  272,  40  Pac.  Rep.  982;  Craig  v.  Geddis,  4  W^ash.  390,  30  Pac. 
Rep.  396;  but  if  there  remains  any  material  part  of  the  work  which 
could  still  reasonably  be  done  in  accordance  with  the  contract,  the 
architect  may  rightfully  withhold  his  certificate  until  the  contractor 
has  completed  the  same;  and  so  long  as  he  can  rightfully  withhold 
his  certificate,  there  can  be  no  recovery  without  it:  Craig  v.  Geddis, 
supra;  Schmidt  v.  City  of  North  Yakima,  12  Wash.  121,  40  Pac.  Rep. 
790.  See  also  Gritman  v.  United  States  F.  &  G.  Co.  (W^ash.),  83  Pac. 
Rep.  6. 

="  Tally  V.   Parsons,    131    Cal.    516,    63   Pac.   Rep.    833. 

=^  See    §  238,    ante,    and    §  242,    post. 

Washington.  Windham  v.  Independent  T.  Co.,  35  Wash.  166,  76 
Pac.    Rep.    936. 

Diiitsatisfactlon  with  work,  if  done  according  to  tlie  contract,  is 
not  ground  for  withholding  the  certificate:  Olson  v.  Snake  River 
Val.  R.  Co.,  22  Wash.  139,  60  Pac.  Rep.  156. 

="  Dishonesty  of  architect:  See  Tally  v.  Parsons,  131  Cal.  516, 
63    rac.    Rep.    833. 

Certificate  withlield  by  engineer  fraudulently,  same  not  required: 
Donegan   v.   Houston    (Cal.  App.),   90  Pac.   Rep.   1073." 

Hawaii.  Fraud  of  architect  excuses  procuring  certificate  of  archi- 
tect as  condition  precedent:   High   v.  Dunn,   11   Hawn.   37. 

Architect  cannot  be  compelled,  in  a  court  of  equity,  to  give  such 
certificate,  there  being  a  plain,  speedy,  and  adequate  remedy  at  law: 
High  V.  Dunn,  supra. 


189  BUILDING   CONTRACTS — COMMON    CLAUSES.    §§240,241 

§  240.  Waiver  of  certificate.  Clauses  in  contract  requir- 
ing certificate  of  architect  are  generally  for  the  benefit  of  the 
owner  of  the  building,  for  his  satisfaction,  and  not  for  the 
benefit  of  the  lien-holder,  and  may  be  waived  by  the  former, 
at  his  option,  or  other  proof  accepted.-'  Likewise  as  to  ac- 
ceptance of  the  building  by  the  architect.-*  Waiver  of  the 
certificate  as  evidence  of  such  completion  is  not  an  impair- 
ment of  any  claim  or  lien  of  any  subclaimant  under  section 
twelve  hundred  and  one.-" 

§  241.  Same.  Dismissal  of  architect.  And  where  such  cer- 
tificates are  conditions  precedent  to  payment,  and  the  owner 
dismisses  such  architect  and  employs  another,  such  action 
renders  strict  performance  impossible ;   and  if  the  contractor 

"  Valley  L.  Co.  v.  Struck,  146  Cal.  266,  270,  80  Pac.  Rep.  405; 
Blethen  v.  Blake.  44  Cal.  117,  120.  See  McLaughlin  v.  Perkins,  102 
Cal.  .502,  36  Pac.  Rep.  839.  See  Loup  v.  California  So.  R.  Co.,  63  Cal. 
97;  Newport  W.  &  L.  Co.  v.  Drew,  125  Cal.  585,  58  Pac.  Rep.  187. 

New  Mexico.  And  so  where  the  owner  was  "to  audit"  the 
amounts  certified  by  the  engineer,  he  cannot  avoid  payment  by 
refusing  to  audit  the  estimates:  Ford  v.  Springer  L.  Assoc,  8  N.  M. 
37,    41    Pac.    Rep.   541. 

Utah.  Culmer  v.  Caine,  22  Utah  216,  61  Pac.  Rep.  1008,  1009;  and 
if  the  owners  Intend  to  insist  upon  their  rights  to  a  final  certifi- 
cate from  the  architect,  they  should  notify  the  contractor;  and  if 
the  certificate  is  refused,  they  can  properly  refuse  payment  for  that 
reason:  Id. 

\VaHhiii|:;:ton.  Windham  v.  Independent  T.  Co.,  35  Wash.  166,  76 
Pac.  Rep.  936;  Washington  Bridge  Co.  v.  Land  &  R.  Imp.  Co.,  12 
Wash.    272,    40    Pac.    Rep.    982. 

For  the  benefit  of  sureties:  De  Mattos  v.  Jordan,  15  Wash.  378, 
393,    46    Pac.    Rep.    402. 

Fact  that  i>uyiiieiit.s  had  been  made  from  time  to  time,  without 
requiring  strict  performance  as  to  certificates  and  presentation  of 
voucliers  that  tlie  labor  and  materials  liad  been  paid  for,  will  not 
be  held  to  be  a  waiver;  and  notwitlistanding  the  fact  that  tlie 
contract  provided  tliat  tlie  taking  possession  of  the  building  witliout 
notice  of  any  reservation  of  rights  would  be  a  waiver  of  a  riglit 
to  demand  such  certificate,  the  proof  must  be  clear;  for  "  wlien 
parties  have  entered  into  a  solemn  agreeinent  in  writing,  by  the 
terms  of  which  certain  things  are  to  be  required  as  a  condition  pre- 
cedent to  payment,  or  other  act  by  either  party,  and  such  conditions 
are  of  such  a  nature  that  tlieir  performance  or  non-performance  will 
also  be  evidenced  by  writings,  public  policy  demands  that  neither 
of  the  parties  sliall  be  held  to  have  waived  sucli  conditions  without 
proof  of  the  clearest  and  most  satisfactory  kind":  Brown  v.  Wine- 
hill,    3    Wash.    524,    28    Pac.    Rep.    1037. 

^  Valley  L.  Co.  v.  Struck,  146  CaL  266,  80  Pac.  Rep.  405;  Castagnino 
V.   Balletta,    82    Cal.    250,    260,    23    Pac.    Rep.    127. 

■"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1201.  See  also  Valley  L.  Co.  v. 
Struck,    146   Cal.    266,    271,    80    Pac.    Rep.    405. 


§  242  mechanics'  liexs.  190 

obtaius  the  certificate  of  the  architects  in  charge  of  the 
work,  it  is  a  sufficient  compliance  with  the  contract  in  that 
respect.^** 

§  242.  Conclusiveness  of  certificate.  But  where  the  con- 
tract provides  that  payments  shall  be  made  on  the  certificate 
of  an  architect,  who  was  required  by  the  contract,  among 
other  things,  to  show  that  all  the  work  of  the  mechanics, 
laborers,  and  others  employed  by  the  original  contractor  had 
been  paid,  the  court  said :  "  Whatever  faithlessness  there 
may  have  been  on  the  part  of  the  architect  in  giving  his  cer- 
tificates to  the  contractor,  it  cannot  affect  or  prejudice  the 
good  faith  of  the  owner  in  making  her  payments  upon  the 
faith  of  those  certificates,  for  it  was  the  mode  of  payment 
which  had  been  agreed  upon;  and  not  only  is  the  original 
contractor  bound  by  his  contract,  but  his  material-men  and 
workmen  are  also  presumed  to  have  had  notice  and  knowl- 
edge of  the  terms  of  it,  and  of  the  rights  and  obligations  of 
the  parties  thereto.^^  There  is  nothing  in  the  contract  or  the 
mechanic's-lien  law  which  required  the  architect  to  give 
notice  of  his  decision  that  the  contractor  was  entitled  to  his 
certificates.  Such  a  provision,  if  it  existed  in  the  law,  might 
afford  some  protection  to  those  who  have  to  do  with  dishon- 
est contractors.  But,  in  the  absence  of  such  a  provision,  the 
certificate  of  the  architect  must  be  considered  conclusive  of 
the  rights  of  the  parties  under  the  contract,  unless  it  can  be 
shown  that  it  was  obtained  by  the  owner  by  collusion,  or 
fraud,  or  mistake.''  ^-    Such  a  rule,  however,  of  course,  has 

3*  Griffith  V.  Happersberger,  86  Cal.  605,  613,  25  Pac.  Rep.  137,  487. 

Oregon.  So  where  the  owner  prevents  performance,  so  that  the 
claimant  cannot  procure  a  certificate:  Justice  v.  Elwert,  28  Oreg.  460, 
43   Pac.   Rep.   649. 

Waslilngton.  Where  the  certificate  of  a  firm  of  architects,  which 
was  dissolved,  was  required,  the  final  certificate  of  the  arcliitect 
acting  in  relation  to  the  work  was  sufficient:  Lavanway  v.  Cannon, 
37    Wash.    593.    79   Pac.   Rep.    1117. 

3»   Dingley  v.  Greene,   54  Cal.   333.   336,  citing  Shaver  v.   Murdock.   36 

Cal.   293. 

'^  Dingley  v.  Greene,  54  Cal.  333,  336  (this  case  was  decided  before 
the  enactment  of  §1201,  Code  Civ.  Proc;  q.  v.).  See  Scanlan  v. 
San  Francisco  &  S.  J.  V.  R.  Co.  (Cal.),  55  Pac.  Rep.  694  (engineer's 
estimate):   and  compare   Moore   v.   Kerr,    65   Cal.   519,    4   Pac.   Rep.   542, 

See    §  239,    ante. 


191  BUILDING    CONTRACTS COMMON    CLAUSES.    §§243,244 

reference  only  to  those  matters  of  which  the  certificate  of  the 
architect  is  made  evidence  by  the  terms  of  the  contract. ^^ 

But  where  the  certificate  of  the  architect  is  not  acted  upon, 
and  no  payments  are  made  thereon  to  the  contractor,  even  if 
based  upon  falsely  receipted  bills  provided  in  the  contract  to 
be  furnished  to  the  architect  before  such  certificate  is  given, 
it  seems  that  such  certificate  is  not  conclusive  against  nor  an 
estoppel  upon  the  contractor's  material-men  who  may  have 
given  such  false  receipts.^* 

§  243.  Extra  work.  Generally.^^  Many  bitter  contests 
have  arisen  over  misunderstandings  respecting  the  common 
clause  of  a  building  contract  relating  to  "  extra  work." 
Whether  such  work  is  done  under  the  original  contract,  or 
under  an  independent  contract,  is  sometimes  dil^cult  to 
determine,  depending  for  its  solution  upon  the  peculiar 
facts  of  each  case, 

§  244.  Same.  Definition.  Extra  work  may  be  tentatively 
defined  to  be  such  work  as  is  not  required  to  be  performed 

Idaho.  Final  certificate  and  estimate  of  architect  held  not  con- 
clusive: See  Huber  v.  St.  Joseph's  Hospital,  11  Idaho  631,  83  Pac. 
Rep.    768. 

Utah.  Fraud  of  engineers  in  estimates:  See  Garland  v.  McMartin, 
8    Utah    150,    151,    30    Pac.    Rep.    365. 

But  see   "  Evidence,"   ^  790,   post. 

Washing^ton.  Conclusiveness  of  certificate,  made  so  by  contract: 
See  De  Mattos  v.  Jordan,  15  Wash.  378,  393,  46  Pac.  Rep.  402.  See 
also  Schmidt  v.  City  of  North  Yakima,  12  Wash.  121,  40  Pac.  Rep. 
790,  in  which  it  was  held  that  a  city  was  not  estopped  from  showing 
the  fraudulent  acceptance  by  the  engineer  of  the  work  and  mate- 
rials, and  that  the  work  and  materials  were  inferior. 

Certiflcate  of  engineer  an  to  completion  of  work  according  to  con- 
tract, which  provided  that  such  certificate  should  be  conclusive 
between  the  parties,  held  conclusive  in  favor  of  the  contractor, 
although  certificate  was  not  in  the  language  of  the.  contract:  East- 
ham  V.  Western   Const.   Co.,   36  Wash.    7,   77   Pac.   Rep.    1051. 

''  See    •'  Evidence,"    §§  789    et    seq.,    post. 

"  Washburn    v.    Kahler,    97    Cal.    58,    60,    31    Pac.    Rep.    741. 

See  also  "Fraud,"   §239,  ante. 

'=  See  Stimson  v.  Dunham  Co.,   146  Cal.   281,  284,  79  Pac.  Rep.  968. 

Construction  of  contract  as  to  wlietlior  work  is  extra  work,  or 
work  under  the  original  contract,  is  for  the  court:  See  Gray  v.  La 
Societe  Frangaise  de  B.  M.,  131  Cal.  566,  572,  63  Pac.  Rep.  848. 

Evidence  of  extra  work:  See  Sweeney  v.  Meyer,  124  Cal.  512,  516, 
67    :  ac.    Rep.    479. 

See  "Evidence,"   §797,   post. 


§  2-15  mechanics'  liens.  192 

under  the  terms  of  the  original  contract,  and  which  is  not  in 
pursuance  of  an  adequate  performance  of  such  contract,  but 
which  is  performed  under  an  independent  contract,  express 
or  implied. ^'^ 

§  245.     Same.     Extra    work    provided    for    in    contract. 

Where  the  contract  fixes  a  certain  price  for  the  work,  and 
also  provides  that  for  any  extra  work  a  certain  price  shall 
be  charged,  whatever  extra  work  is  performed  by  the  con- 
tractor is  part  of  the  work  done  under  the  contract. ^^    And 

^  Colorado.  The  question  of  what  constitutes  extra  work  depends, 
as  a  general  rule,  upon  the  construction  of  the  contract,  and  the 
contractor  cannot  recover  for  increased  cost,  as  extra  work,  upon 
discovering-  that  he  has  made  a  mistake  in  his  estimate  of  the  cost, 
or  that  the  work  is  more  difficult  and  expensive  than  he  anticipated; 
but  where  the  contractor  is  ordered  to  make  changes  from  the 
original  contract  plans,  or  to  do  work  in  some  way  connected  with 
tlie  original  contract,  but  substantially  independent  of  it.  and  the 
circumstances  are  such  that  the  owner  must  know  that  tlie  execution 
of  such  orders  will  cause  extra  labor  and  expense  to  the  contractor, 
not  contemplated  by  the  original  contract,  he  is  liable  to  compen- 
sate the  contractor  tlierefor,  as  for  extra  work,  in  the  absence  of 
some  express  provision  in  the  original  contract  to  the  contrary. 
An  extra  is  somethir  beyond  or  outside  of  the  contract;  it  is 
something  not  provided  for,  and  tlierefore  not  covered  by  the  com- 
pensation stipulated:  Hennessey  v.  Fleming  Bros.  (Colo.),  90  Pac. 
Rep.    77. 

"  Gray  v.   Wells,    118   Cal.    11,    17,    50   Pac.   Rep.    23. 

Colorado.  Removing  rubbish  at  the  request  of  the  owner,  not 
within  the  terms  of  the  contract,  is  extra  work,  and  the  reasonable 
value  thereof  may  be  recovered;  but  where  more  work  than  is  antici- 
pated is  required  to  carry  out  tlie  contract,  no  recovery  can  be  had 
for  extra  work  to  perform  the  contract;  Hennessey  v.  Fleming  Bros. 
(Colo.),    90    Pac.    Rep.    77. 

As  to  -whether  T»-ork  is  under  the  original  contract,  or  is  extra 
worlt,  see  Flick  v.  Hahn's  Peak  &  E.  R.  C.  &  P.  M.  Co.,  16  Colo. 
App.    485,    66    Pac.    Rep.    453,    455. 

Hav^-aii.  Work  done  to  complete  the  contract  is  not  extra  work, 
although  ordered  in  writing,  as  required  for  extra  work  in  the  con- 
tract; American-Hawaiian  E.  &  C.  Co.  v.  Territory,  17  Hawn.   195. 

Idaho.  W'here  a  contract  defined  certain  classes  of  material  to 
be  excavated,  and  in  the  progress  of  the  work  an  unclassified  mate- 
rial (hard-pan)  was  struck,  and  the  contractor  applied  for  a  "hard- 
pan  "  classification,  and  was  informed  that  he  should  have  a  fair 
classification,  the  contractor  was  held  entitled  to  recover  the  reason- 
able value  of  removing  the  hard-pan;  Spaulding  v.  Co^ur  D'AIene 
R.  &  N.  Co.,   5  Idaho  528,  51  Pac.  Rep.   408. 

Nevada.  Where  changes  were  made  in  the  specifications  by  the 
owner,  so  that  the  contractor  was  obliged  to  supnly  extra  machinery 
and  materials  for  a  mill,  they  were  held  to  have  been  supplied  under 
the  original  contract,  and  not  under  a  separate  contract;  Salt  Lake 
H.  Co.  v.  Chainman  M.  &  E.  Co.,  137  Fed.  Rep.  632,  635  (this  case  does 
not   seem   to   be   in   line   with    the  authorities). 


193  BUILDING    CONTRACTS — COMMON    CLAUSES.  §245 

whatever  work  is  done  at  the  request  of  the  owner  to  com- 
plete a  contract  is  a  continuation  of  the  previous  work,  and 
done  under  the  same  contract.^* 

Where  the  question  arose  as  to  whether  the  work  was  done 
by  the  claimant  under  a  contract  of  novation  in  place  of  the 
original  contract,  or  w^hether  the  work  was  extra  w^ork  done 
under  the  original  contract  by  the  claimant  as  subcontractor, 
it  was  held  that  the  expression  "  extra  work  "  evidently  had 
reference  to  the  original  contract  for  the  conditions  and 
terms  under  which  it  was  done.^" 

Where,  notwithstanding  the  contract  is  entire  and  indivis- 
ible, the  work  is  done  satisfactorily  as  agreed,  according  to 
the  specifications  of  the  contract,  and,  through  the  fault  of 

Oregon.  Changing-  chimneys  from  common  to  pressed  brick  as 
part  of  the  waU  provided  in  contract:  Chamberlain  v.  Hibbard,  26 
Greg.  428,  38  Pac.  Rep.  437. 

Where  the  contract  requires  the  contractor  "to  rub  down  the 
brickwork  on  the  street  sides,"  the  use  of  acids  in  so  doing  does 
not  convert  the  work  into  "extra  work":  Id. 

The  contractor  cannot  recover  for  columns  to  support  balconies 
of  a  building,  which  were  required,  owing  to  the  malperformance  of 
the  contract  by  the  contractor,  on  any  theory  that  the  same  are 
extras:    Vanderhoof  v.  Shell,   42   Oreg.   578,   72  Pac.   Rep.   126. 

WaHhiii)i;tun.  Where  one  offered  to  furnish,  at  a  certain  price  speci- 
fied, items  of  lumber  for  a  building,  extras  to  be  furnished  at  the 
market  price,  and  the  offer  was  accepted,  with  the  proviso  that  the 
price  named  should  include  all  extras,  and  the  seller  furnished  the 
lumber  without  objection,  he  was  not  entitled  to  additional  com- 
pensation for  extras  furnished:  Littell  v.  Saulsberry,  40  Wash  550 
82   Pac.  Rep.   909. 

As  to  alterations,  see  Brown's  Exrs.  v.  Farnandis,  27  Wash.  232,  67 
Pac.  Rep.  574.  See  Cowles  v.  United  States  F.  &  G.  Co.,  32  Wash. 
120.  72  Pac.  Rep.  1032,  98  Am.  St.  Rep.  838  (as  to  alterations  not 
material   so  as  to  make  a   new   contract). 

Changes  by  oral  agreement,  extra  work:  See  Long  v.  Pierce 
County,  22  Wash.  330,  61  Pac.  Rep.  142,  146  (contract  for  erection 
Of  schoolhouse,  requiring  contractor  to  proceed  with  work  on 
written  order  of  architect,  notwithstanding  objection  to  architect's 
valuation,  which  was  to  be  submitted  to  arbitration;  held,  written 
order  not  prerequisite  to  recovery  for  extra  work  not  called  for  in 
specifications,  but  required  by  detail  plans  subsequently  furnished  by 
architect). 

'*'  Mclntyre  v.  Trautner,  63  Cal.  429,  430.  See  Conlee  v.  Clark  14 
Ind.  App.  205,  212,  42  N.  E.  Rep.  762,  56  Am.  St.  Rep.  303;  General 
F.  &  E.  Co.  V.  Schwartz  Bros.  Com.  Co.,  165  Mo.  171,  181,  65  S.  E 
Rep.  318;  Shaw  v.  Fjellman,  72  Minn.  457,  468,  75  N.  W.  Rep  705- 
Minneapolis  T.  Co.  v.  Great  N.  R.  Co.,  74  Minn.  30,  33,  76  N.  W.  Rep.  593* 

Disapproved:    Avery  v.  Butler,   30  Oreg.   287.   293.   47  Pac.  Rep.   706 

^*  See  Downing  v.  Graves.  55  Cal.  544,  550. 
Mech.  Liens  —  13 


§§  246-248  mechanics'  liens.  194 

the  owner,   a  tunnel   caved  in,   the  work  in  repairing  the 
tunnel  is  extra  work.*** 

§  246.  Same.  Contract  in  writing.  Where  the  original 
contract  is  not  required  to  be  in  writing,  the  contract  for 
extra  work  is  not  required  to  be  in  writing.^^  Where  the  con- 
tract provides,  "  No  extra  work  to  be  paid  for,  unless  the 
price  has  been  fixed  by  the  parties,  the  work  named,  and  the 
agreement  made  at  the  time  the  extra  work  is  done,"  there 
can  be  no  recover^'  for  extra  work,  unless  the  provisions  of 
the  contract  are  complied  with.*^  Likewise  when  the  con- 
tract provides  that  the  character  and  valuation  of  the  extra 
work  shall  be  agreed  to  and  in  writing  consented  to  by  the 
owner,  although  the  architect  gaVe  verbal  instructions  to  do 
such  extra  work.*^ 

§  247.  Same.  Verbal  alteration  of  original  contract.  In 
those  cases  where  the  statute  does  not  require  an  alteration 
of  a  written  contract  to  be  in  writing,  and  the  written  con- 
tract provides  that  "  no  extra  work  is  to  be  paid  for  except 
by  contract  in  writing,"  the  parties  may  verbally  rescind  this 
provision  and  agree  to  the  alterations.** 

§  248.  Same.  Estoppel.  But  where  the  extra  work  is 
done  with  the  knowledge  and  consent  of  the  owner  and  his 

«  McConneU  v.  Corona  City  W.  Co.,   149  Cal.  60,  63,  85  Pac.  Rep.  929. 

"  Barilari  v.  Ferrea.  59  Cal.  1,  4  (decided  under  §  1183  as  it  stood 
in  1876.  Tliere  was  no  provision  for  extra  work  in  the  original  con- 
tract). 

^  Likewise  as  to  a  written  order,  even  wiiere  the  contract  also  pro- 
vides that  the  engineer  may  direct  additions  to  the  work:  White  v. 
San  Rafael  &  S.  Q.  R.  Co.,  50  Cal.  417,  420;  Meigs  v.  Bruntsch,  54  Cal. 
601,  602. 

Montana.  Wliere  the  contract  provided  that  the  order  for  such 
extra  work  should  he  in  writing,  it  was  held  that  no  recovei-y  could 
be  had  upon  an  express  oral  order  for  the  work,  or  upon  an  implied 
contract  without  such  written  order:  Wortman  v.  Kleinschmidt.  12 
Mont.    316,    30   Pac.    Rep.    280. 

Neva«la.  See,  as  to  waiver  of  similar  clause,  Truckee  Lodge  v. 
Wood.  14  Nev.  293,  305. 

*3  Gray  v.  La  Socl6t6  Frangaise  de  B.  M.,  131  Cal.  566,  63  Pac. 
Rep.    848. 

"  McFadden  v.  O'Donnell,  18  Cal.  160.  165.  See  Wortman  v. 
Kleinschmidt,  12  Mont.  316,  343,  30  Pac.  Rep.  280  (dis.  op.,  De  Witt, 
J.):  Truckee  Lodge  v."  \\'ood.  14  Nev.  307;  Crowley  v.  United  States 
F.  &  G.  Co.,   29  Wash.   268,   274,  69  Pac.  Rep.   784. 


195  BUILDING    CONTRACTS — COMMON    CLAUSES.     §§249-251 

agent,  and  they  waive  the  written  stipulation  for  a  separate 
written  estimate  required  by  the  contract,  by  orally  agreeing 
to  a  continuance  of  the  work  without  written  estimates, 
which  would  not  have  been  done  but  for  such  consent  of  the 
owner,  he  will  not,  on  the  principle  of  estoppel,  be  permitted 
to  repudiate  the  extra  work  so  done.^^ 

In  the  absence  of  the  principle  of  estoppel,  or  of  an  express 
agreement  to  rescind  an  express  clause  of  the  contract  re- 
quiring a  written  order  or  estimate  before  liability  for  extra 
work  shall  be  incurred,  no  such  liability  arises.**' 

§  249.  Same.  Arbitration.  A  provision  is  sometimes  in- 
serted for  the  determination  of  the  value  of  the  extra  work 
by  arbitration,  and  such  provisions  have  been  upheld  as  con- 
ditions precedent  to  recovery."*' 

§  250.  Same.  Void  contract.  Where  the  contract  is  void 
for  non-compliance  with  the  provisions  of  section  eleven  hun- 
dred and  eighty-three  of  the  Code  of  Civil  Procedure,  it  was 
held  that  no  lien  could  be  enforced  for  extra  work  upon  an 
implied  contract,  when  the  lieu  could  not  have  been  enforced 
for  the  extra  work  under  the  original  contract,  if  valid ;  *^ 
but  the  extent  of  this  doctrine,  in  the  light  of  the  recent  de- 
cisions relative  to  the  effect  of  the  invalidity  of  the  statutory 
original  contract,  has  not  been  established.*** 

§  251.  Payments.  How  considered  herein.  The  subject 
of  payments  is  closely  connected  with  that  of  arbitrations,^" 

«  Wyman  v.  Hooker,  2  Cal.  App.  36,  41,  83  Pac.  Rep.  79  (hearing 
In  supreme  court  denied). 

<«  J.  M.  Griffith  Co.  v.  City  of  Los  Angeles  (Cal.,  Sept.  3,  189S),  54 
Pac.  Rep.  383;  and  see  Gray  v.  La  Society  Frangaise  de  B.  M.,  131  Cal. 
566,    570,    63    Pac.    Rep.    848. 

"  Holmes  v.  Ricliet.  56  Cal.  307,  312,  38  Am.  Rep.  54.  See  "Arbi- 
tration," §§  230-235,  ante. 

Extra  work  subsiMiueut  to  nioTtgase:  See  "Priorities,"  §§  486  et  seq. 

Oregon.  But  as  to  waiving  it  by  pleading  to  the  merits,  and  not  in 
abatement,  see  Chamberlain  v.  Hibbard,  26  Oreg.  428,  38  Pac.  Rep.  437. 

Wiishington.     Hughes  v.   Bravinder,   9   Wash.   595,   38   Pac.  Rep.   209. 

See    §§  230-235,    ante. 

*"  Morris  v.   Wilson,   97  Cal.   644,   646,   32   Pac.   Rep.   801. 

*»  See  "Void  Contract,"  §§  319  et  seq.,  post. 

••  See  §§  230-235,  ante. 


§§  252, 253  mechanics'  liens.  196 

certificates,''^  extra  work,^^  and  performance,^^  and  what  is 
said  elsewhere  on  those  subjects  will  not  be  repeated  here. 
The  subject  of  the  statutory  requirements  of  California  as  to 
the  provisions  of  the  contract  with  reference  to  payments  is 
considered  under  the  head  of  "  Statutory  Requirements."  ^* 

§  252.  Same.  Conditions  precedent.  Conditions  prece- 
dent in  a  building  contract  are  like  conditions  precedent  in 
any  other  contract,  and  they  must  be  performed  by  the  con- 
tractor before  payment  can  be  required  under  the  contract.^^ 

si  253.  Same.  Waiver.  Where  a  contract  contemplates 
the  privilege  of  the  owner  to  pay  at  his  pleasure  for  mate- 
rials delivered,  in  advance  of  their  delivery,  conditioned  that 

"  See   §§  238-242,   ante. 

B?  See   §§  243-250,   ante. 

^3  See    "Performance,"    §§334    et   seq.,    post. 

Oregon.  Where,  by  the  terms  of  the  building-  contract,  the  con- 
tractor bound  himself  to  "  promptly  pay,  or  cause  to  be  paid,  for  all 
materials  used  by  him  under  this  contract,  and  for  all  labor  ...  in 
the  construction  and  completion  "  of  said  building,  held,  that  a  fail- 
ure to  promptly  pay,  or  cause  to  be  paid,  for  any  such  work  or 
materials  constituted  a  breach  of  such  contract:  Thompson  v. 
Coffman,   15  Oreg.   631,  16  Pac.  Rep.  713. 

AVashington.  Failure  to  make  payments,  breach  of  contract: 
Anderson   v.   McDonald,    31   Wash.    274.    91    Pac.    Rep.    1037. 

"*  See  Kerr's  Cjc.  Code  Civ.  Proe.,  §  1184. 

65  Holmes  v.  Richet,   56  Cal.   307,   312,   38  Am.  St.   Rep.   54. 

See  §  232,  ante. 

As  to  eonditions  preeedent,  generally,  see  very  full  treatment  in 
Kerr's  Cje.  Civ.  Code,  §  1439,  note  pars.  1-45;  see  also  §  256,  post. 

Contractor's  order  in  favor  of  liis  material-man,  accepted  by  a 
third  party,  payable  upon  completion  of  the  building,  is  not  payable, 
where  the  building  was  destroyed  by  fire  before  completion,  without 
fault  of  the  material-inan  or  contractor,  and  nothing  becomes  due 
from  the  owner  to  the  contractor:  Hogan  v.  Globe  M.  B.  &  L.  Assoc, 
140    Cal.    610,    74    Pac.    Rep.    153. 

Payment  made  before  the  comiueneenient  of  tlie  ^'ork,  indepen- 
dent promise:  See  Carpenter  v.  Ibbetson,  1  Cal.  App.  272,  274,  81  Pac. 
Rep.   1114. 

Payments,  ^vben  due,  acceptance  of  -ivork:  See  Newport  W.  &  L, 
Co.  V.  Drew,  125  Cal.  585,  592,  58  Pac.  Rep.  187. 

Arizona.     See   O'Connor   v.    Adams    (Ariz.),    59    Pac.    Rep.    105. 

Colorado.      Orman  v.  Ryan,   25  Colo.  383,  55  Pac.  Rep.   168. 

Montana.      McGlauflin  v.  Wormser,  28  Mont.  177,  72  Pac.  Rep^  428. 

]Ve-»v  Slexico.  Payment  by  deed  of  land:  Ford  v.  Springer  Li. 
Assoc,    8   N.   M.    37,    41    Pac.    Rep.    541. 

Oregon.  Payment  to  agent:  See  Harrisburg  L.  Co.  v.  Washburn, 
29  Oreg.  150,  44  Pac.  Rep.  390. 

Payment  to  contractor's  material-man  at  former's  request:  Allen 
V.   Elwert.    29   Oreg.   428,   440,   44   Pac.   Rep.    823,    48   Id.    54. 


197  BUILDING    CONTRACTS  —  COMMON    CLAUSES.  §254 

such  materials  are  satisfactory  to  the  architect,  this  condi- 
tion is  not  waived  by  such  advance  payment.^" 

§  254.  Same.  Application  of  payments.  The  general 
principles  of  application  of  payment  arc  set  forth  in  the  Civil 
Code  of  California,^^  and  they  will  not  be  considered  here  in 
detail.  When,  at  the  time  that  the  owner  pays  an  amount  to 
the  contractor,  the  former  manifests  an  intention  to  apply  it 
upon  a  particular  obligation,  and  the  latter  knows  of  such 
intention,  it  is  sufficient  to  fix  the  application  of  the  payment, 
and  the  mode  by  which  the  debtor  manifests  his  intention  is 
immaterial. ^^  Pending  the  delivery  of  bricks,  and  within  a 
few  days  thereafter,  the  original  contractor  paid  money  to 
his  material-man  without  specially  directing  the  application 
of  the  payment,  and  the  plaintiff  applied  a  portion  of  the 
money  to  the  payment  of  a  debt  due  him  from  the  contractor 
previous  to  the  time  of  the  contract,  and  it  was  held  that  he 

6«  Bateman    Bros.    v.    Mapel,    145    Cal.    241,    243,    78    Pac.    Rep.    734. 

See   S  240,    ante. 

Oregon.  Waiver  of  final  certificate  of  architect  as  a  condition  to 
suit  for  final  payment:  See  Vanderhoof  v.  Shell,  42  Oreg.  578,  72 
Pac.  Rep.  126.  See  also  Hand  Mfg.  Co.  v.  Marks,  36  Greg.  523,  59 
Pac.    Rep.    549,    552. 

■■'  KerrVs  Cye.  Civ.  Code,  §  1479,  and  note. 

■■"  Hanson  v.  Cordano,  96  Cal.  441,  31  Pac.  Rep.  457  (valid  statutory- 
original  contract.  In  this  case  the  original  contractor  attempted  to 
apply  the  payment  to  a  former  debt  owing  to  him  by  the  owner). 

Oregon.  A  debtor,  when  he  pays  a  sum  of  money  to  his  creditor, 
may  direct  to  which  of  different  debts  due  from  him  to  his  creditor  it 
shall  be  applied.  If  he  does  not  so  direct,  the  creditor  may  make 
the  application  of  the  payment,  and  if  neither  of  the  parties  make 
the  application,  then  the  court  may  make  it,  and  will  generally  apply 
it  on  a  debt  that  is  unsecured,  in  preference  to  one  that  is  secured: 
Trullinger  v.  Kofoed,  7  Oreg.  228,  33  Am.  Rep.  70S. 

Utah.  Application  of  payments:  See  Sierra  Nevada  L.  Co.  v. 
Wliitmore,  24  Utah  130,  66  Pac.  Rep.  779,  781. 

Wushingrton.  Where  a  joint  mechanic's  lien  against  several 
houses  was  released  as  to  one  of  the  houses,  in  consideration  of 
payments  already  made,  such  payments  should  be  applied,  first  to 
the  amount  due  on  account  of  the  house  released,  and  then  pro 
rata  to  the  others:  Powell  v.  Nolan,  27  W'ash.  318,  67  Pac.  Rep. 
712,    720. 

Applieation  of  payments:  See  Burnett  v.  Ewing,  39  Wash.  45,  sul) 
nom.  Burnett  v.  Kirk,  80  Pac.  Rep.  855;  Spaulding  v.  Burke,  33 
Wash.   679,   74    Pac.    Rep.    829. 

Creditor  has  right  to  apply  paynients  ivhen  the  debtor  does  not 
make  application:  Powell  v.  Nolan,  27  Wash.  318,  67  Pac.  Rep.  712 
718. 

Application  of  pnynientH,  mortgage,  extras:  See  likewise  Powell 
V.   Nolan,    27    Wash.    318,    67    Pac.    Rep.    712,    719. 


§  255  mechanics'  liens.  198 

had  no  right  to  do  so,  the  court  saying,  "  If  this  could  be 
done,  it  would  have  the  effect  of  subjecting  the  owner  to  the 
payment  of  other  debts  between  the  contractor  and  his  em- 
ployees outside  of  his  building  contract."  ^^ 

Where  subclaimants  apply  payments  made  to  them  by  the 
contractor,  to  another  building  contract,  and  other  uncon- 
nected claims  against  the  contractor,  the  owner  of  the  build- 
ing cannot  apply  such  payments  to  reduce  the  demand  of  the 
subclaimants,  even  if  the  contractor  uses  the  receipt  from 
the  subclaimants  in  obtaining  a  credit  on  the  building  con- 
tract, and  in  inducing  the  owner  to  make  further  advances, 
if  the  subclaimants  repudiate  such  application  by  the  owner, 
and  the  subclaimants  settle  with  the  contractor,  without  his 
claiming  the  benefit  thereof,  and  the  procuring  of  additional 
money  from  the  owner,  by  such  receipt  of  the  contractor,  was 
without  the  knowledge  or  consent  of  the  subclaimants  •  but 
the  rule  may  be  otherwise  if  the  owner  is  misled,  or  would 
otherwise  pay  the  contractor  or  other  creditor  more  money 
than  the  amount  of  his  indebtedness  to  the  contractor.*" 

§  255.  Liens.  Statutory  provision.  California.  Section 
twelve  hundred  and  one  of  the  Code  of  Civil  Procedure  pro- 
vides :  "  It  shall  not  be  competent  for  the  owner  and  con- 
tractor, or  either  of  them,  by  any  term  of  their  contract,  or 
otherwise,  to  w^aive,  affect,  or  impair  the  claims  and  liens  of 
other  persons,  whether  with  or  without  notice,  except  by 
their  written  consent,  and  any  term  of  the  contract  to  that 
effect  shall  be  null  and  void."  °^ 

s»  Goss  V.  StreUtz,  54  Cal.  640,  645. 

Montana.  See  Christnot  v.  Montana  G.  &  S.  M.  Co.,  1  Mont.  44 
(owner's  laborer  may  appropriate,  if  owner  does  not  do  so). 

«»  Schallert-Ganahl  L.  Co.  v.  Neal,  91  Cal.  362,  365,  27  Pac.  Rep.  743. 

Oregon.  Where  the  owner,  relying  upon  a  waiver  of  subclaim- 
ants, pays  the  balance  due  to  the  contractors,  the  lien  is  lost: 
Hug-hes  V.  Lansing,   34  Oreg.  118,   55  Pac.  Rep.  95,   75  Am.  St.  Rep.   574. 

Equal  application  o£  payment  on  two  bonnes:  Smith  v.  'Wilcox, 
44    Oreg.    323.    74    Pac.    Rep.    708. 

«i  Whittier  v.  W^ilbur,  48  Cal.  175,  177  (1867-68).  In  Bowen  v. 
Aubrey,  22  Cal.  566,  571  (1858),  the  contract  provided  that  the  con- 
tractor should  not  sublet  without  the  written  permission  of  the 
owner,  and  should  not  encumber,  nor  suffer  to  be  encumbered,  t!)e 
building  or  lot  by  any  liens,  and  it  was  held  that  the  contractor 
having  waived  his  right  to  a  lien,  his  subcontractor,  having  notice  of 
the  contract,  and  having  performed  the  said  contract  without  the 
written   consent,    was   held   bound   by   the   terms   of   the   original    con- 


199  BUILDING    CONTRACTS COMMON    CLAUSES.  §-56 

§  256.  Same.  Condition  precedent.  Where  the  contract 
provides  "  that  for  each  of  said  payments  a  eertificate  shall 
be  obtained  from  and  be  signed  by  the  architect,  and  also, 
that  at  the  time  of  the  presentation  of  either  of  said  certifi- 
cates there  be  neither  opposition  against  the  said  payments, 
nor  any  liens  against  the  aforesaid  building,"  the  existence 
of  such  a  lien  constitutes  a  good  and  sufficient  reason  for 
non-payment.*^- 

tract,    and    to    have    waived   his    lien;    but   thei'e    was    no    provision    in 
the  statute  like  §  1201,  Kerr's  Code  Civ.  Proe. 

\%"a)!ihingtoii.  See  Huttig-  Bros.  Mfg.  Co.  v.  Denny  Hotel  Co..  6 
Wash.   122,   125,  34  Pac.  Rep.  774. 

62  Holmes  v.   Richet,    56   Cal.   307,   316,   38   Am.   St.   Rep.   54. 
As   to   condition    precedent,    see   §  252,    ante. 

Agreement   of  contractor  not  to  tile  lien:   See  Knowles  v.   Baldwin, 
125    Cal.    224,    226,    57    Pac.    Rep.    988. 
See  note  1  Am.  &  Eng-.  Ann.  Cas.  954. 

Colorado.  Where  a  contractor  is  not  to  allow  any  subliens  to  be 
set  up,  or,  otherwise,  to  cause  them  to  be  satisfied,  and  there  is  no 
provision  in  the  contract  prohibiting  the  contractors  themselves  from 
filing  a  claim  of  lien,  subclaimants  may  nevertlieless  claim  a  lien,  the 
contract  merely  providing  for  the  satisfaction  thereof  by  the  con- 
tractor, if  asserted:  Aste  v.  Wilson,  14  Colo.  App.  323,  59  Pac.  Rep. 
846.     And  the  contractors  themselves  might  file  a  lien:  Id. 

Hawaii.  An  agreement  by  the  contractor  to  give  sufficient  evi- 
dence that  the  premises  are  free  from  liens,  and  to  indemnify  the 
owner  for  payments  made  in  discharging  liens,  does  not  estop  the 
material-men  and  contractor's  subcontractor  from  enforcing  a  lien: 
Allen  v.  Redward,  10  Hawn.  151,  157;  but  it  might  estop  the  original 
contractor  from  filing  a  lien   (dictum):    Id. 

Montana.  Payment  cannot  be  demanded  except  only  upon  satis- 
factory proof  that  there  was  no  claim  or  lien  against  the  building, 
when  the  contract  so  provided:  Franklin  v.  Schultz,  23  Mont.  165, 
57    Pac.    Rep.    1037. 

Nevada.  Lien  not  waived  by  stipulating  in  the  original  contract 
that  the  title  to  machinery  should  not  pass  to  the  purchaser  until  all 
payments  should  be  made  in  cash  :  Salt  Lake  H.  Co.  v.  Chainman  M. 
&  E.  Co.,  128  Fed.  Rep.  509,  s.  c.  137  Fed.  Rep.  632.  See  Hooven  v. 
Featherstone,  111  Fed.  Rep.  81,  95  C.  C.  A.  229,  and  authorities  cited. 
Xew  Mexico.  But  where  the  contract  provides  for  such  certificate 
of  an  engineer,  and  a  showing  that  no  claims  of  lien  have  been  filed, 
and  the  contractor  complies  therewith,  and  subsequently  files  his 
claim  by  reason  of  failure  of  the  owner  to  pay,  the  fact  tliat  claims 
of  lien  are  subsequently  filed  by  subclaimants  will  not  affect  his  lien  : 
Ford  v.  Springer  L.  Assoc.  8  N.  M.  37,  41  Pac.  Rep.  541,  s.  c.  affirmed. 
168  U.  S.  513,  bk.  42  L.  ed.  562,  18  Sup.  Ct.  Rep.   170. 

Oregon.  Where  the  building  is  to  be  kept  free  from  liens  for  a 
certain  period  beyond  the  time  for  malting  the  last  payment,  the 
contractor  is  not  entitled  to  such  payment,  if  such  liens  were  then 
upon  the  building  :    Henry  v.  Hand,   36  Oreg.   492,   59  Pac.  Rep.   330. 

Where  the  contract  provided  that  the  owner  should  be  satisfied, 
before  making  tlie  final  payment,  that  no  liens  had  been  placed  on 
the  property,  this  is  no  defense  to  the  contractor's  claim,  where  the 
owner  incurred  the  indebtedness  for  which  a  material-man  filed  a 
lien  ;    Vanderhoof  v.  Shell,  42  Oreg.  578,  72  Pac.  Rep.  126.  131. 


§  257  mechanics'  liens.  200 

§  257.  Same.  Public  property.  And  where  the  contract 
is  to  erect  a  monument  upon  public  property,  a  clause  in  the 
contract,  that  "  before  any  payment  is  made  under  the  con- 
tract the  contractor  shall  satisfy  the  said  architects  "  that 
all  materials  furnished,  and  all  the  work  of  mechanics, 
laborers,  and  others  employed  or  hired  by  the  contractor, 
"  have  been  fully  paid,  so  that  no  lien  can  be  filed  against 
said  work,"  etc.,  is  unnecessary,  since  no  lien  can  be  had 
upon  public  property.^^ 

W'a.shiugton.  The  contractor  may  recover  the  balance  of  the  con- 
tract price,  when  the  contract  provides  that  when  it  has  been  fully 
performed,  and  upon  a  showing  made  that  there  are  outstanding  no 
claims  by  reason  of  work  performed  or  materials  furnislied  that 
could  be  made  the  basis  of  a  lien,  the  owner  would  pay  the  con- 
tractor the  balance  due  and  unpaid,  if  the  contractor  exhibits  to  the 
owner  receipts  and  vouchers  for  all  labor  performed  and  materials 
furnished,  showing-  them  to  be  fully  paid  for  :  Lavanway  v.  Cannon, 
37  Wash.  593,  79  Pac.  Rep.  1117. 

"3  Griffith  v.  Happersberger,  86  Cal.  605,  613,  25  Pac.  Rep.  137,  487. 

See  "Public  Property,"  S  192,  ante. 


201  NON-STATUTORY    ORIGINAL    CONTRACTS.  §  258 


CHAPTER    XIV. 

BUILDING    CONTRACTS     (CONTINUED).       NON-STATUTORY 
ORIGINAL  CONTRACTS. 

§  258.  Method  of  treatment. 

§  259.  Statutory  and  non-statutory  original  contracts  compared. 

§  260.  Same.     Implied  contract. 

§  261.  Same.     Contract  price  less  than  one  thousand  dollars. 

S  262.  Same.     Contract  price  computable. 

§  263.  What  in  no  event  a  statutory  original  contract. 

f  264.  Provisions  not  applicable  to  non-statutory  original  contracts. 

§  265.  Same.     Writing.     Filing.     Payments. 

§  266.  Same.     Notice  to  owner.     Premature  payments. 

§  267.  Same.     Payment  in  land. 

§  268.  Same.     Alteration  of  contract.     Conspiracy. 

§  258.  Method  of  treatment.  In  this  chapter  will  be  con- 
sidered : 

1.  Non-statutory  original  contracts  in  general;  that  is, 
contracts  not  required  by  the  mechauic's-lien  law  to  be  in  the 
form  prescribed  by  the  statute/  and  their  differentiation 
from  statutorj^  original  contracts. 

In  the  following  chapter  -  will  be  considered : 

2.  Statutor}^  original  contracts ;    and  herein : 

A.  Statutory  requirements  not  essential  to  the  validity  of 
the  whole  statutory  original  contract ;  and  hereunder : 

a.  Provisions  imposing  a  penalty;   and 

b.  Provisions  avoiding  certain  clauses. 

And  in  the  second  chai)ter  following-'  will  be  considered: 

B.  Statutory  requirements  essential  to  the  validity  of  the 
whole  statutory  original  contract. 

In  the  succeeding  or  third  chapter  following  *  this  chapter 
will  be  discussed : 

3.  The  effect  of  the  validity  and  invalidity  of  the  statu- 
tory original  contract. 

'  Kerr's  Cyc.   Code   Civ.  Proc,   §  1183. 
^  Chapter  xv. 
'  Chapter  xvi. 
*  Chapter  xvii. 


§§  259-261  mechanics'  liens.  202 

§  259.  Statutory  and  non-statutory  original  contracts 
compared.  The  definitions  of  statutory  and  non-statutory 
original  contracts  have  already  been  given. ^  A  "  non-statu- 
tory "  original  contract,  under  the  California  statute,  can  be 
distinguished  from  a  "  statutory "  original  contract  by  a 
careful  examination  of  the  terms  of  section  eleven  hundred 
and  eighty-three  of  the  Code  of  Civil  Procedure,^  and  "vvill 
be  specifically  pointed  out  and  illustrated  in  this  and  suc- 
ceeding chapters.  In  the  statutory  original  contracts  the 
amount  agreed  to  be  paid  must  exceed  one  thousand  dollars.'' 

§  260.  Same.  Implied  contract.  It  is  evident  from  what 
has  been  said,  that  where  the  contract  price  is  not  expresslj^ 
agreed  to  be  paid,  but  is  left  to  implication  of  law,  it  is  not  a 
"  statutory  original  contract,"  but  is  a  "  non-statutory  ori- 
ginal contract  " ;  ^  and  in  such  case  the  implied  contract  for 
labor  or  materials  is  not  complete  until  after  the  labor  is 
done,  or  the  materials  are  furnished,  at  the  request  of  the 
owner  of  the  contemplated  structure.® 

§  261.  Same.  Contract  price  less  than  one  thousand  dol- 
lars.     In    those    cases    where    the    original    contract    price, 

"  See   §  214,   ante. 

'•  Non-statutory  and  statutory  orii^inal  contracts.  Care  must  be 
taken,  in  considering-  decisions  with  reference  to  this  point,  to  note 
that  the  section  was  first  amended  in  1885  so  as  to  create  this  dis- 
tinction, and  that  cases  of  contracts  previous  to  that  time,  where  the 
agreed  value  was  over  one  thousand  dollars,  stand  upon  the  same 
footing  as  '"  non-statutory  original  contracts  "  (except,  in  a  sligiit 
degree,  in  the  case  of  any  decision  rendered  under  §  2  of  the  act  of 
April    26,    1862). 

Colorado.  Laws  1899,  pp.  261,  262,  §  1  (3  Mills's  Ann.  Stats.,  2d  ed.. 
§  2267),  provides  for  a  similar  statutory  original  contract,  when  the 
amount  to  be  paid  exceeds  five  hundred  dollars;  but  the  statute 
simply  makes  the  property  of  the  owner  subject  to  the  lien  for  the 
value  of  the  labor  performed  and  materials  furnished,  and  does  not 
make  the  original  contract  void. 

'  The  t;:eueral  riu'litis  and  duties  under  statutory  orig:inal  contracts 
wnll  be  further  considered  under  the  head  of  "Valid  Statutory  Origi- 
nal Contracts,"  §§  315  et  seq.,  post. 

»  Rebman  v.  San  Gabriel  V.  L.  &  W.  Co.,  95  Cal.  390,  393,  30  Pac. 
Rep.    564. 

Colorado.  See  Small  v.  Foley,  8  Colo.  App.  435,  47  Pac.  Rep.  64 
(1893).     See  preceding  note. 

»  Rebman  v.  San  Gabriel  V.  L.  &  W.  Co.,  95  Cal.  390,  393,  30  Pac. 
Rep.    564. 

Colorado.  See  Small  v.  Foley,  S  Colo.  App.  435.  47  Pac.  Rep.  64 
(ISn.l). 


II 


203  NON-STATUTORY    ORIGINAL    CONTRACTS.  §  262 

although  express,  does  not  exceed  one  thousand  dollars,  it  is 
not  a  "  statutory  original  contract,"  but  is  a  "  non-statutory 
original  contract."  ^° 

In  this  connection  the  court  has  said :  "  It  was  not  in- 
tended, we  think,  that,  in  order  to  preserve  the  right  of  lien, 
a  laborer  [sic]  or  contractor  should  be  put  to  the  trouble  of 
entering  into  a  written  contract,  and  reserving  twenty-five 
per  cent  of  the  contract  price  for  thirty-five  days  after  the 
completion  of  the  work,  in  cases  where  the  contract  price  is 
less  than  one  thousand  dollars.  The  rule  contended  for 
would  be  a  harsh  one  in  cases  where  the  contract  price  was 
less  than  one  thousand  dollars,  —  small  amounts."  ^^ 

§  262.  Same.  Contract  price  computable.  When  the  con- 
tract necessarily  shows  that  the  agreed  price  is  more  than 
one  thousand  dollars,  as  by  fixing  a  rate  per  yard,  and  the 
number  of  yards  would  bring  the  price  to  more  than  one 
thousand  dollars,  it  is  a  statutory  original  contract,  and 
must  comply  Avith  the  provisions  of  section  eleven  hundred 
and  eighty-three ;  ^-  but  otherwise  if  it  does  not  expressly 
appear  from  the  contract  that  the  agreed  price  is  more  than 
one  thousand  dollars.^'' 

Evading  statute.  The  requirements  of  the  statute  as  to 
statutory  original  contracts  cannot  be  evaded  by  failing  to 
express  the  contract  price  in  the  contract,  when,  as  a  matter 
of  fact,  a  price  in  excess  of  one  thousand  dollars  is  actually 
and  necessarily  agreed  upon.^* 

>"  Sidling-er  v.  Kerkow,  82  Cal.  42,  45,  22  Pac.  Rep.  932;  Kerckhoff- 
Cuzner  M.  &  L.  Co.  v.  Cummings,  86  Cal.  22,  25,  24  Pac.  Rep.  814;  Deni- 
son  V.  Burrell.  119  Cal.  180.  51  Pac.  Rep.  1;  Southern  California  L.  Co. 
V.  Jones,   133  Cal.   242,   245,   65  Pac.  Rep.   378. 

"  Sidlinger  v.  Kerkow,  82  Cal.  42,  45,  22  Pac.  Rep.  932. 

"  Smith  V.  Bradbury,  148  Cal.  41,  82  Pac.  Rep.  367,  113  Am.  St.  Rep. 
189.  This  case,  however,  failed  to  notice  the  opinion  on  the  same  con- 
tract in  Snell  v.  Bradbury,  139  Cal.  379,  383,  73  Pac.  Rep.  150,  in  which 
case  the  question  arose  as  to  effect  of  the  failure  to  state  the  con- 
tract price  expressly  in  the  contract,  and  it  was  held  that  the  contract 
need  not  express  a  price  when  no  expressed  price  was  agreed  upon. 
It  is  believed  that  the  doctrines  contained  in  the  text  are  all  that  can 
be  safely  said  to  have  been  decided  in  these  cases  as  they  stand. 

'•■'  Snell  v.  Bradbury,  139  Cal.  379,  383,  73  Pac.  Rep.  150;  but  see 
same  contract  in  Smith  v.  Bradbury,  148  Cal.  41,  82  Pac.  Rep.  367,  113 
Am.  St.  Rep.  189. 

'^  Smith  v.  Bradbury,  148  Cal.  41,  82  Pac.  Rep.  367,  113  Am.  St.  Rep. 
189. 

See  '•  Original  Contract,"  §  211,  ante. 


§§  263-265  mechanics'  liens.  204 

§  263.  What  in  no  event  a  statutory  original  contract. 
Where  the  contract  is  not  an  original  contract  at  all,  as,  for 
instance,  in  the  case  of  the  contract  of  a  mere  material-man, 
the  provisions  of  sections  eleven  hundred  and  eighty-three 
and  eleven  hundred  and  eighty-four  of  the  Code  of  Civil 
Procedure  as  to  the  formalities  of  the  contract  have  no 
application  whatever,  whether  the  agreed  price  is  more  or 
less  than  one  thousand  dollars. ^°  And,  likewise,  a  contract 
for  street-work,  under  section  eleven  hundred  and  ninety- 
one,  is  not  a  statutory  original  contract.^*^ 

§  264,  Provisions  not  applicable  to  non-statutory  original 
contracts.  It  may  be  stat(^d  generally  that  the  statutory  pro- 
visions specially  applicable  to  statutory  original  contracts 
are  not  required  in  the  case  of  non-statutory  original  con- 
tracts.^' And  unless  the  language  used  in  the  statute,  "  his 
contract,"  "  the  contract,"  ete.,  is  construed  to  allude  only 
to  the  statutory  original  contracts  prescribed  by  the  stat- 
ute,^'^  it  may  be  somewhat  difficult  to  determine  when  such 
provisions  are  or  are  not  applicable  to  a  contract  under 
investigation. 

§  265.  Same.  Writing.  Filing,  Payments.  The  supreme 
court  has  held  that,  under  the  California  statute,  non- 
statutory original  contracts  need  not  be  in  writing ;  ^®  nor 
filed,  if  written ;  ^°  neither,  under  these  decisions,  need 
twenty-five  per  cent  of  the  whole  contract  price  be  payable 
at  least  thirty-five  days  after  the  final  completion  of  the 

'^  Extremely  inisleadini;  are  some  expressions  of  the  court  in  tlie 
decisions  in  Santa  Monica  L.  &  M.  Co.  v.  Hege.  119  Cal.  376,  378,  51 
Pac.  Rep.  555,  and  Madera  F.  &  T.  Co.  v.  Kendall,  120  Cal.  182,  184,  52 
Pac.  Rep.  304,  65  Am.  St.  Rep.  117,  althougli  the  judgments  are  un- 
doubtedly correct. 

"  See   §  215,   ante. 

"  Sidlinger  v.  Kerkow,  82  Cal.  42,  45,  22  Pac.  Rep.  932.  And  see 
Kerckhoff-Cuzner  M.  &  L.  Co.  v.  Cummings,  86  Cal.  22,  25,  24  Pac.  Rep. 
814. 

"  Kerr's  Cyo.  Code  Civ.  Proo.,  §  1183. 

»»  Southern  Cal.  L.  Co.   v.  Jones,   133  Cal.   242,   244,   65  Pac.  Rep.   378. 

">  Southern  Cal.  L.  Co.  v.  Jones,  133  Cal.  242.  244,  65  Pac.  Rep.  378; 
Nason  v.  John,  1  Cal.  App.  538,  541,  82  Pac.  Rep.  566.  See  note  25,  post, 
this  chapter. 


i 


205  NON-STATUTORY   ORIGINAL    CONTRACTS.  §  266 

work;-^  nor  need  the  contract  price  be  payable  in  instal- 
ments, nor  after  the  commencement  of  the  work.--  But  the 
contract  price  may,  in  such  case,  be  made  payable  before  the 
work  is  commenced,  or  may  be  made  payable  after  the  build- 
ing is  completed,  or  at  such  other  time  or  times  as  the  owner 
and  contractor  may  have  agreed.-^ 

§  266.     Same.    Notice  to  owner.   Premature  payments.   In 

those  cases  in  which  the  contract  ju-ice  is  not  required  by 
the  statute  to  be  paid  according  to  the  provisions  of  section 
eleven  hundred  and  eighty-four  of  the  Code  of  Civil  Pro- 
cedure, it  may  be  paid  in  accordance  with  the  terms  of  the 
contract.  Thus  in  an  early  case,  there  being  a  non-statutory 
original  contract,  it  was  held  that  where  the  statute  gives  a 
lien  "  to  the  extent  of  the  original  contract  price  "  to  the 
original  contractor,  a  lien  was  given  only  for  an  amount  not 
exceeding  the  sum  to  become  due  to  such  contractor  for 
the  benefit  primarily  of  subclaimants,  and  where  the  sub- 
contractor has  been  fully,  and  not  prematurely,  paid  by  the 
original  contractor,  in  accordance  with  their  contract,  the 
former's  subclaimants  can  demand  nothing  from  the  original 
contractor  or  owner,  nor  by  notice  intercept  any  amount  due 
from  the  owner  to  the  contractor ;  and  their  right  to  enforce 
a  lien  is  limited  to  the  sum  due  from  contractor  to  the  sub- 
contractor at  the  tirae.^* 

='  Southern  Cal.  L.  Co.  v.  Jones,  133  Cal.  242,  244,  65  Pac.  Rep.  378- 
Sidlinger  v.  Kerkow,  83  Cal.  42,  45,  22  Pac.  Rep.  932  (under  one  thou- 
sand doUars);  Kerckhoff-Cuzner  M.  &  L.  Co.  v.  Cumming-s,  supra 
(under  one  thousand  dollars);  Denlson  v.  Burrell,  119  Cal.  180  182 
51  Pac.  Rep.  1    (under  one  thousand  dollars). 

Colorado.  Contract  was  not  required,  under  ch.  Ixv,  Gen.  Stats.,  to 
be  under  seal  or  in  writing:  Williams  v.  Uncompahg-re  Canal  Co  13 
Colo.   469,   479.   22  Pac.   Rep.   806. 

=2  Kerckhoff-Cuzner  M.  &  L.  Co.  v.  Cumming-s,  86  Cal.  22,  25,  24  Pac. 
Rep.  814;  Denison  v.  Burrell,  supra.  See  Russ  L.  &  M.  Co.' v.  Garrett- 
son,   87  Cal.   589,   592,   25   Pac.   Rep.   747. 

^  Southern  Cal.  L.  Co.  v.  Jones,  133  Cal.  242,  244,  65  Pac  Rep  378- 
Denison  v.  Burrell,  119  Cal.  180,  182,  51  Pac.  Rep.  1;  Nason  v  John' 
1  Cal.  App.   538,   541,   82  Pac.   Rep.   566. 

■'*  Dore  V.  Sellers,  27  Cal.  588,  594  (1862).  See  Southern  Cal.  L.  Co  v 
Jones,  133  Cal.  242,   244,  65  Pac.  Rep.  378. 

See  also   "Rights   of  Subcontractor,"   §§70-73,  ante:    "Lien   as  Lim- 
ited   by    Contract,"    §315,    post;    "Liability    of    Owner,"    §§526    et    seq 
post. 


§§  267. 268  mechanics'  liens.  206 

This  doctrine  has  been  broadened  recently,  even  in  the 
ease  of  original  contracts,  and  it  is  now  lield  that  where 
there  is  a  non-statutory  original  contract,  the  payment  of 
the  contract  instalments,  if  any,  is  subject  to  change  l)y 
agreement  of  the  owner  and  contractor,  both  as  to  time  and 
amount,  as  in  the  case  of  private  contracts  relating  to  other 
matters,  and  section  twelve  hundred  and  one,  as  to  the  im- 
pairment of  liens,  has  no  application ;  '^  and  if  the  owner, 
under  such  a  contract,  makes  a  premature  payment  to  the 
contractor  before  notice  is  served  upon  him  by  a  subclaim- 
ant,  he  is  not  liable.^® 

§  267.  Same.  Payment  in  land.  A  non-statutory  original 
contract  may  be  made  payable  in  money,  or  in  anything  else 
the  parties  thereto  may  agree  upon;  but  a  subclaimant 
under  such  a  non-statutory  original  contract  may  foreclose 
a  lien,  notwithstanding  the  contract  price  is  less  than  one 
thousand  dollars,  and  is  payable  in  something  other  than 
money,  for  instance,  land,  if  it  has  not  been  in  fact  paid 
when  the  claim  of  lien  was  filed  and  the  action  commenced.^^ 

§  268.  Same.  Alteration  of  contract.  Conspiracy.  The 
terms  of  a  non-statutory  original  contract,  if  in  writing, 
may  be  altered  by  a  contract  in  writing  or  by  an  executed 
oral  agreement,  and  not  otherwise.^^  And  it  seems  that  the 
provisions  as  to  conspiracy  in  reference  to  the  contract  price 
have  no  application  to  non-statutory  original  contracts.-" 

=^  Southern  Cal.  L.  Co.   v.  Jones,   133  Cal.   242,   244,   65   Pac.   Rep.   378. 

But  see  certain  expressions  in  the  opinion  in  Nason  v.  John,  1  Cal. 
App.  538.  540.  82  Pac.  Rep.  5G6,  in  whicli  the  court  fails  to  note  the 
great  distinction,  in  this  respect,  between  statutory  and  non-statutory 
original   contracts. 

26  Southern  Cal.  L.  Co.  v.  Jones,  133  Cal.  242,  244,  65  Pac.  Rep.  378. 
See  Los  Angeles  Pressed  Brick  Co.  v.  Los  Angeles  P.  B.  &  D.  Co.  (Cal. 
App.,  Jan.  23,  1908),  94  Pac.  Rep.  775. 

=•  Under  Kerr's  Cvc.  Code  Civ.  Proc,  §§  1183,  1184,  and  Kerr'«  Cyc. 
Civ.  Code,  §1201:    Schmid  v.  Busch,   97  Cal.   184,   188,   31  Pac.  Rep.   893. 

See,  however,  "Payment,"  §280,  post,  it  now  being  held  that  the 
statutory    original    contract   may   provide    for   payment    other    than    in 

"^°"  Anderson  v.  Johnston,   120  Cal.   657,   659,   53  Pac.  Rep.   264;  Kerr'a 
Cyc.  Oiv.  Code,  §  1698,  and  note. 

See  "  Alteration  of  Contracts."  §  326,  post. 

»  See  Sidlinger  v.  Kerkow,  82  Cal.  42,  46,'  22  Pac.  Rep.  932. 


207  STATUTORY  ORIGINAL  CONTRACTS.  §  269 


CHAPTER  XV. 

BUILDING  CONTRACTS  (CONTINUED).  STATUTORY  ORIGINAL 

CONTRACTS. 

A.     Statutory  Requiremexts  not  Essential  to  the  Validity  of  the 
Whole  Statutory  Original  Contract. 

§  269.  Provisions  imposing  a  penalty.  Payments,  in  general.  Statu- 
tory provision. 

§  270.     Same.     Scope  and  object  of  these  provisions. 

§  271.     Same.     Substantial  compliance  required.     Effect. 

§  272.  Same.  Contract  price  not  to  be  payable  in  advance  of  the 
work. 

§  273.  Same.  Contract  price  payable  in  instalments,  or  after  com- 
pletion. 

§  274.  Same.  Payment  of  twenty-five  per  cent  thirty-five  days  after 
completion. 

§  275.     Same.     The  object  of  this  provision. 

§  276.     Same.     General  rule. 

§  277.     Same.     Illustrations.     Sufficient  compliance. 

§  278.     Same.     What  not  substantial  compliance. 

§  279.     Same.     Provision  as  to  liens. 

§  280.     Same.     Payment  in  money. 

§  281.     Same.     Contractor's  bond.     Provision  unconstitutional. 

§  282.     Same.     Effect  of  giving  bond.     Common-law  obligation. 

§  283.     Same.     Previous  decisions  concerning  bond. 

§  284.  Provisions  avoiding  certain  clauses.  Impairment  of  liens. 
Statutory  provision. 

§  285.     Same.     Provision,  when  not  applicable. 

A.     STATUTORY      REQUIREMENTS      NOT      ESSENTIAL      TO      THE 
VALIDITY  OP  THE  WHOLE  STATUTORY  ORIGINAL  CONTRACT. 

§  269.  Provisions  imposing  a  penalty.  Payments,  in  gen- 
eral. Statutory  provision.  The  Calit'oruia  luechaiiie's-lien 
law  ^  provides:  "  No  part  of  the  contraet  price  shall,  by  the 
terms  of  any  such  contract,  be  made  payable,  uur  shall  the 
same  or  any  part  thereof  be  paid  in  advance  of  the  com- 
mencement of  the  work,  but  the  contract  price  shall,  by  the 
terms  of  the  contract,  be  made  payable  in  instalments  at 
specified  times  after  the  commencement  of  the  work,  or  on 

•   Kerr's  Cjc.  Code  Civ.  Proc.,  §  1184. 


§§  270, 271  mechanics'  liens.  208 

the  completion  of  specified  portions  of  the  work,  or  on 
the  completion  of  the  whole  work;  provided,  that  at  least 
twenty-five  per  cent  of  the  whole  contract  price  shall  be 
made  payable  at  least  thirty-five  days  after  the  final  comple- 
tion of  the  contract.  ...  As  to  all  liens,  except  that  of  the 
contractor,  the  whole  contract  price  shall  be  payable  in 
money,  and  shall  not  be  diminished  by  any  prior  or  subse- 
quent indebtedness,  offset,  or  counterclaim,  in  favor  of  the 
reputed  owner  and  against  the  contractor;  no  alteration  of 
any  such  contract  shall  affect  any  lien  acquired  under  the 
provisions  of  this  chapter.  In  case  such  contracts  and  alter- 
ations thereof  do  not  conform  substantially  to  the  provisions 
of  this  section,  the  labor  done  and  materials  furnished  by  all 
persons  except  the  contractor  shall  be  deemed  to  have  been 
done  and  furnished  at  the  personal  instance  and  request  of 
the  person  who  contracted  with  the  contractor,  and  they  shall 
have  a  lien  for  the  value  thereof."  ^ 

§  270.     Same.     Scope  and  object  of  these  provisions.    The 

expression  "  any  such  contract,"'  in  this  provision,  refers  to 
the  statutory  original  contract  of  section  eleven  hundred  and 
eighty-three.^ 

The  object  of  these  provisions  seems  to  be  to  give  ample 
opportunity  to  claimants  to  intercept  moneys  in  the  hands  of 
the  owner,  by  notice  to  him  or  by  filing  their  claim  of  lien,* 
and  are  for  the  benefit  of  lien  claimants.^ 

§  271.  Same.  Substantial  compliance  required.  Effect. 
Only  substantial  compliance  with  the  provisions  of  section 
eleven  hundred  and  eighty-four  is  required."  This  section 
does  not  declare  the  contract  to  be  void  in  case  it  does  not 

=  AinendineBt  o£  1885  to  this  section  made  the  whole  contract  void 
by  a  failure  to  comply  substantially  with  its  provisions;  but  the 
amendment  of  1887  changed  the  penalty,  as  above  shown:  See  San 
Diego  L.  Co.  v.  Wooldredge,  90  Cal.  574,  577,  27  Pac.  Rep.  431;  Ganahl 
v.  Weir,   130  Cal.   237,   239,   62  Pac.  Rep.  512. 

Colorado.  Similar  provision  :  Laws  1899,  pp.  263-265,  §  2,  3  Mills's 
Ann.  Stats.  Supp..  §  2868. 

3  Sidlinger  v.  Kerkow,  82  Cal.  42,  44,  22  Pac.  Rep.  932. 

*  See  "Obligations  of  Owner  as  Fixed  by  Notice,"  §§547  et  seq., 
post. 

5  Southern  Cal.  L.  Co.  v.  Jones,  133  Cal.  242,  244,  65  Pac.  Rep.  378. 

•  Brill  v.  De  Turk,  130  Cal.  241,  243,  62  Pac.  Rep.  462. 


209  STATUTORY  ORIGINAL  CONTRACTS.  §  272 

conform  substantially  to  its  provisions/  It  requires  good 
faith  on  the  part  of  the  owner,  however ;  ^  and  only  imposes 
a  penalty  upon  the  owner  by  making  his  property  subject  to 
liens  for  labor  done  and  materials  furnished,"  and  the  court 
indulges  every  reasonable  intendment  to  avoid  these  penal- 
ties." 

In  case  of  material  non-conformity  with  these  provisions  of 
section  eleven  hundred  and  eighty-four,  sublienors  maj^ 
enforce  their  liens,  irrespective  of  the  amount  due  under 
the  contract.^ ^  The  provision  in  the  section  that,  under 
such  circumstances,  the  work  and  materials  are  deemed  to 
have  been  done  at  the  personal  instance  and  request  of  the 
person  w^ho  contracted  with  the  contractor  does  not  mean 
that  such  person  is  personally  liable,  but  that  a  lien  may  be 
enforced  against  the  property  for  the  value  of  the  work  or 
materials. ^^ 

§  272.  Same.  Contract  price  not  to  be  payable  in  ad- 
vance of  the  work.  Under  the  meehanic's-lien  law,'^  no  part 
of  the  contract  price  should  be  payable  in  advance  of  the 
commencement  of  the  work,  under  the  terms  of  a  statutory 
original  contract. 

Under  section  five  of  the  act  of  1862,^'  which  did  not  re- 
quire the  contract  price  to  be  payable  in  any  particular  man- 

'  Stimson  M.  Co.  v.  Riley  (Cal.),  42  Pac.  Rep.  1072;  San  Diego  L.  Co. 
V.  Wooldredge,  90  Cal.  574,  579,  27  Pac.  Rep.  431.  See  Yancy  v.  Morton, 
94  Cal.   558.   561,   29  Pac.  Rep.   1111. 

"  Stimson  M.  Co.  v.  Riley  (Cal.),  42  Pac.  Rep.  1072,  1074;  Joost  v. 
Sullivan.   Ill  Cal.  286,  296,  43  Pac.  Rep.  896. 

9  Stimson  M.  Co.  v.  Riley   (Cal.),   42  Pac.  Rep.   1072. 

1"  Brill  V.  De  Turk,  130  Cal.  241,  243,  62  Pac.  Rep.  462;  Stimson  M. 
Co.  V.  Riley  (Cal.),  42  Pac.  Rep.  1072;  San  Diego  L.  Co.  v.  Wooldredge, 
90  Cal.  574,  579,  27  Pac.  Rep.  431.  See  Yancy  v.  Morton,  94  Cal.  558, 
561,  29  Pac.  Rep.  1111;  West  Coast  L.  Co.  v.  Knapp.  122  C;il.  79,  54  Pac. 
Rep.    533. 

See   S  26,   ante. 

"  San  Diego  L.  Co.  v.  \Vooldredge,  90  Cal.  574,  579,  27  Pac.  Rep.  431. 

"  .-see  "Liability  of  Owner."  S  539,  post.  Kerr's  Cyc.  Code  Civ.  Proc., 
I  1184.  seems  simply  to  nullify  any  payment,  under  a  statutory  origi- 
nal contract,  which  is  prematurely  made,  and  does  not  affect  any 
other   payment   which    is   valid. 

Colorado.  See  Chicago  L.  Co.  v.  Newcomb.  19  Colo.  App.  265,  74 
Pac.    Rep.    786,    787. 

"  Kerr's  Cyo.  Code  Civ.  Proc,  §  1184.  See  Soutliern  Cal.  L.  Co.  v. 
Jones.   133  Cal.  242,  244,   65  Pac.  Rep.  378. 

"  Act    of    April    :•«,    1S(S2.    Stats.    1862.    p.    385,    repealing    prior    acts; 
itself  repealed,  Stats.  1867-68,  p.  594.     Principal  features  of  statute  of 
April   26,   1862.   is  embodied  in   §  1184,  Code  Civ.  Proc. 
Mech.  Liens  —  14 


§  273  MECHAXICS'   LIEXS.  210 

ner  under  the  terms  of  the  contract,  it  was  held  that  if  the 
contractor  engages  to  construct  a  building  in  consideration, 
in  whole  or  in  part,  of  a  debt  then  due  from  him  to  the  em- 
ployer, or  of  a  sum  paid  him  by  the  employer  upon  the  exe- 
cution of  the  contract,  that  portion  of  the  contract  price  rep- 
resented by  the  debt  or  the  advance  payment  cannot  become 
a  lien  upon  the  building.^" 

§  273.  Same.  Contract  price  payable  in  instalments,  or 
after  completion.  In  a  statutory  original  contract  the  con- 
tract price  must  be  payable  in  instalments  at  specified  times 
after  the  commencement  of  the  work,  or  on  the  completion  of 
specified  portions  thereof,  or  on  the  completion  of  the  whole 
work.'*'  It  seems  that  the  statute  does  not  fix  the  time  of  any 
payment,  except  the  final  instalment,  and  it  does  not  make 
the  time  there  fixed  the  test  of  liability,  as  the  contract  must 
furnish  the  test.'^ 

Payments  provided  for,  to  material-men.  Where  the  con- 
tract provides  for  payments  to  be  made,  through  the  owner, 
to  the  material-men  when  the  materials  were  used  on  the 
building,  and  to  the  mechanics  and  laborers  weekly  for  work 
actually  done,  it  is  specific  enough  as  to  time,  and  complies 
substantially  with  the  statute ;  '^  and  where  a  statutory  ori- 
ginal contract  provides  for  progress  instalments,  in  analogy 
to  the  rule  as  to  the  completion  of  the  building  for  the  pur- 
pose of  filing  claims  of  lien,  "  a  trivial  imperfection  "  in  the 
work  will  not  cause  an  instalment  to  be  prematurely  paid, 
where  the  claimant  is  not  injured,  so  as  to  create  a  further 
liability  against  the  owner's  property  to  the  extent  of  such 
instalment.'^ 

When  tMrd  payment  to  contractor  was  to  be  made  when 
the  building  and  improvements  should  be  "  completed  and  ac- 

15  Dore  V.  Sellers,  27  Cal.  588,  593. 

>»  Kerr's  Cyc.  Code  Civ.  Proc,  §  1184. 

See  §§  269   et  seq.,   ante. 

1'  Valley  L.  Co.  v.  Struck,  146  Cal.  266,  272,  80  Pac.  Rep.  405,  concur- 
ring opinion  of  Shaw,  J.;  and  see  this  case  generally  on  the  whole 
subject. 

"  Reed  V.  Norton,  90  Cal.  590,  601,  34  Pac.  Rep.  333.  See  Brill  v.  De 
Turk,  130  Cal.  241,  242,  62  Pac.  Rep.  462.  ' 

1"  Stimson  M.  Co.  v.  Rfley   (Cal.),  42  Pac.  Rep.  1072,  1074. 

See  "Premature  Payments."  §§269  et  seq.,  ante;  and  "Obligations 
of  Owner,"  §§  522,  541,  554  et  seq.,  and  §§  563,  600,  post. 


211  STATUTORY   ORIGINAL    CONTRACTS.  §  274 

cepted  by  the  architect,"  the  fact  that  the  owner  made  such 
payment  after  the  completion  of  the  building,  and  before 
the  acceptance  by  the  architect,  does  not  render  the  pay- 
ment invalid  as  to  lien-holders,  under  section  eleven  hundred 
and  eighty-four,  where  such  lien-holders  had  not  given  pre- 
vious notice  of  their  claims,  as  provided  in  that  section.-*^ 

Provision  for  payment  of  bills.  Sufficiency.  Where  a  stat- 
utory original  contract  recites  that  "  all  bills  for  material 
and  labor,  when  indorsed  by  the  contractor,  will  be  paid  on 
demand,  provided  that  said  bills  for  material  and  labor  do 
not  exceed  seventy-five  per  cent  of  the  value  of  the  material 
and  labor  employed  in  the  erection  of  said  building  up  to  the 
date  of  said  bills,"  it  is  a  substantial  compliance  with  the 
statute  as  to  the  times  and  amounts.-^ 

Provision  for  withholding  percentage  of  contract  price. 
And  a  statutory  original  contract  requiring  "  twenty-five  per 
cent  of  the  contract  sum  to  remain  unpaid  until  thirty-five 
daj's  from  and  after  the  completion  "  of  the  building,  and  its 
acceptance  by  the  architect  and  "  the  remaining  amount  to 
be  paid  in  partial  payments  in  amount  equal  to  seventy-five 
per  cent  of  the  value  of  the  work  done  and  materials  fur- 
nished at  the  time  of  such  payments,"  complies  substantially 
with  the  section. -- 

§  274.  Same.  Payment  of  twenty-five  per  cent  thirty-five 
days  after  completion.^^  Under  a  California  statutory  origi- 
nal contract,  at  least  twenty-five  per  cent  of  the  whole  con- 
tract price  must  be  made  pa3^able  at  least  thirty-five  days 

'"  Valley  L.  Co.  v.  Struck,  146  Cal.  266,  270,  80  Pac.  Rep.  405. 

"  The  court  say:  "The  contract  goes  even  further  than  the  stat- 
ute, because,  by  its  terms,  there  must  be  at  all  stages  of  the  work  at 
least  twenty-five  per  cent  of  the  value  of  the  work  and  labor  fur- 
nished unpaid  to  the  contractor  and  still  in  the  hands  of  the  owner  of 
the  building.  The  safeguard  intended  by  the  statute  is  accomplished 
in  the  contract,  and  this  is  all  that  is  necessary,  because  the  penalty 
for  the  disregard  of  the  statute  attaches  only  when  the  contract  does 
'not  conform  substantially  to  the  provisions  of  this  section'":  Brill 
V.   De  Turk,   130  Cal.   241,   243,   62  Pac.  Rep.  462. 

"  Dunlop  V.  Kennedy  (Cal.),  34  Pac.  Rep.  92  (rehearing  granted. 
On  the  subse(iuent  liearing  this  point  was  eliminated). 

See  §  274.  post. 

^  Ah  to  oftNetN  against  stipulated  payments,  see  Hampton  v.  Chris- 
tensen,  148  Cal.  729,  84  Pac.  Rep.  200. 


§§275,276  mechanics'  liens.  212 

after  the  final  completion  of  the  contract,^*  and  if  it  omits  so 
to  provide,  it  is  void  as  to  all  persons  furnishing  material  or 
performing  labor  upon  the  building,  whether  before  or  after 
the  filing  of  the  contract.-^ 

§  275.  Same.  Object  of  provision.  The  object  of  this  pro- 
vision is  for  the  protection  of  subcontractors,  material-men, 
and  laborers,  thus  giving  them,  if  unpaid,  ample  time,  after 
the  work  is  completed,  to  file  their  claims  of  lien  and  secure 
payment  of  any  sums  of  money  due  them.-'' 

Owner  pays  at  his  own  risk  claims  of  liens  asserted  against 
the  final  twenty-five  per  cent  of  the  contract  price,  when  he 
does  so  without  an  order  of  court  or  any  judgment  as  to  their 
validity.-' 

Partial  payments  may  be  safely  made  by  the  owner,  it 
seems,  provided  subclaimants  do  not  give  notice,  as  required 
by  section  eleven  hundred  and  eighty-four;  and  in  the  ab- 
sence of  such  notice  they  must  rely  upon  the  personal  respon- 
sibility of  the  contractor,  and  the  twenty-five  per  cent  of  the 
whole  contract  price  required  to  be  retained  for  thirty-five 
days  after  the  completion  of  the  work ;  and  in  such  case  they 
are  in  no  wise  affected  by  any  uncertainty  as  to  the  time 
when  partial  payments  are  to  be  made,  nor  by  payments 
thereof  in  advance  of  the  time  specified.^^ 

§  276.  Same.  General  rule.  Where  the  provisions  of  the 
contract  as  to  the  time  of  final  payment  are  substantially  in 
conformity  with  the  provisions  of  the  section  of  the  me- 
ehanic's-lien  law,  and  no  lien-holder  is  injured  by  a  variation 

"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1184.  See  Hogan  v.  Globe  Mut.  B.  & 
L.  Assoc.,  140  Gal.  610,  613,  74  Pac.  Rep.  153:  Southern  Cal.  L.  Go.  v. 
Jones,   133  Cal.  242,  244,  65  Pac.  Rep.  378. 

"  Stimson  M.  Go.  v.  Nolan  (Gal.  App.,  June  19,  1907),  91  Pac.  Rep. 
262.  A  contract  which  makes  the  whole  price  due  and  payable  at  and 
before  the  completion  of  the  building  is  a  substantial  departure  from 
the  provision  of  S  1183  of  the  Code  of  Civil  Procedure,  making  one 
fourth  payable  thirty-five  days  after  the  completion  of  the  contract: 
Merced  L.  Co.  v.  Bruschi   (Cal.  Sup.,  Nov.  29,   1907),  93  Pac.  Rep.  844. 

=<=  De  Camp  L.  Co.  v.  Tolhurst,  99  Gal.  631,  635,  34  Pac.  Rep.  438.  See 
Southern  Cal.  L.  Co.  v.  Jones,  133  Gal.  242,  244,  65  Pac.  Rep.  378. 

"  Wilson  v.  Nugent,  125  Cal.  280,  57  Pac.  Rep.   1008. 

^  Dunlop  V.  Kennedy  "(Cal.),  34  Pac.  Rep.  92  (rehearing  granted. 
On  the  subsequent  liearing  this  point  was'eliminated). 


I 


213  STATUTORY    ORIGINAL    CONTRACTS.  §  277 

from  the  exact  provisions  of  the  statute,  it  seems  that  it  is 
sufficient.-^ 

§  277.  Same.  Illustrations.  Sufficient  compliance.  Thus 
where  there  is  a  provision  in  the  contract  that  the  balance  of 
twenty-five  per  cent  of  the  contract  price  shall  be  paid  after 
the  completion  of  the  building,  but  may  be  paid  at  any  time 
between  the  date  of  completion  and  the  expiration  of  the 
thirty-five  days  in  case  the  contractors  show  receipts  and 
give  special  bonds  that  all  bills  will  be  paid  and  that  no  liens 
or  other  claims  exist  against  the  premises,  such  payment  to 
be  optional  with  the  owner,  it  is  sufficient.^'' 

Last  payment  thirty-six  days  after  completion.  And  so 
where  the  contract  provides  that  the  last  payment  shall  be 
made  "  within  thirty-six  days  "  after  the  completion  of  the 
contract,  the  owner  does  not  incur  the  penalty  of  the  statute ; 
for  when  a  debtor  is  allowed  a  certain  period  within  which  to 
make  payment,  the  debt  is  not  due  until  the  expiration  of  the 
period,  the  court  saying,  "  I  think  a  debt  cannot  be  said  to  be 
due  until  the  creditor  can  rightfully  demand  and  insist  upon 
payment.  This  is  the  usual  and  conventional  meaning  of  the 
language  as  applied  to  deferred  payments.  Unless  the  money 
is  put. out  upon  interest,  and  the  creditor  is  making  a  profit 
by  having  it  kept  out,  it  will  be  presumed  that  he  will  accept 
payment  whenever  it  is  tendered.  The  extended  credit  in 
such  a  case  is  wholly  for  the  benefit  of  the  payor.  The  con- 
tractor, laborers,  and  material-men  in  a  building  contract  are 
presumed  to  be  willing  to  receive  their  pay  at  the  earliest 
possible  moment,  and,  aside  from  the  statute,  it  would  be  law- 
ful and  proper  that  the  owner  should  pay  at  once.  Regard- 
ing the  contract  without  reference  to  the  statute,  therefore, 
one  would  say  the  postponement  of  payments  is  solely  for 
the  benefit  of  the  owner.  Although  the  code  requires  this 
particular  contract  to  be  made  that  lienors  may  be  protected 
still  it  must  be  construed  as  the  voluntary  undertaking  of 

=»  San  Diego  L.  Co.  v.  Wooldredge,  90  Cal.  574.  579,  27  Pac  Rep  431- 
Yancy  v.  Morton.  94  Cal.  558,  561,  29  Pac.  Rep.  1111;  Stimson  M  Co  v' 
Riley   (Cal.),  42  Pac.  Rep.   1072. 

'0  Yancy  v.  Morton,  94  Cal.  558,  561,  29  Pac.  Rep.  1111.     "The  proviso 
found   in    this   contract   was    undoubtedly   for   the   benefit    of   tlie   con-    ' 
tractor." 


§  278  mechanics'  liens.  214 

the  parties,  and  interpreted  in  the  same  way.  .  .  .  The  words 
of  the  statute  must  be  understood  in  their  popular  sense,  and, 
so  understood,  the  contract  does  not  violate  the  statute."  *^ 

Substitution  of  thirty  days  after  the  completion  of  the 
building,  instead  of  thirty-five  days  required  by  the  me- 
chanic's-lien  law,  also  has  been  held  sufficient,  since  claims 
of  lien  must  be  filed  within  thirty  days,  and  attach  before 
the  payment  could  be  legality  made  under  the  contract. ^- 

Less  than  twenty-five  per  cent  reserved.  Likewise  where 
a  smaller  amount  than  that  required  by  the  statute,  namely, 
fifteen  dollars,  less  than  the  twenty-five  per  cent  of  the  con- 
tract price,  is,  under  the  contract,  to  be  paid  thirty-five  days 
after  the  completion  of  the  work,  it  is  a  substantial  compli- 
ance, especially  Avhen  more  than  twenty-five  per  cent  was  in 
fact  retained,  upon  the  principle,  De  minimis  non  curat  lex, 
the  deficiency  being  trifling  in  comparison  with  the  whole 
amount  of  such  payment,  and  no  claimant  being  injured.^^ 

§  278.  Same.  What  not  substantial  compliance.  On  the 
other  hand,  it  is  not  a  substantial  compliance  with  the  statute 
where  the  statutory  original  contract  provides  merely,  "  The 
last  and  final  payment  is  to  be  made  thirty-five  days  after 
completion  of  the  work  according  to  contract,"  without  speci- 
fying the  amount  of  that  payment,  although  it  is  previously 
provided  in  the  contract  that  "  seventy-five  per  cent  of  the 
cost  of  material  and  work  completed  at  the  time  of  payment 
is  to  be  paid  on  the  first  and  third  Saturdays  of  each  month 
as  the  work  progresses."  The  court  said :  "  There  is  a  mani- 
fest difference  between  setting  forth  the  amount  that  is  to 
be  paid  at  any  particular  date,  and  stating  that  a  certain  per- 
centage of  the  cost  will  be  so  paid.  Although  the  cost  and 
the  contract  price  of  the  work  contracted  for  may  be  the 

"  Apparently  the  case  of  a  statutory  origrinal  contract  :  West  Coast 
L.  Co.  V.  Knapp,  122  Cal.  79,  54  Pac.  Rep.  533,  534,  citing  Reed  v.  Nor- 
ton, 90  Cal.  590,  26  Pac.  Rep.  767,  27  Id.  426,  and  Yancy  v.  Morton,  94 
Cal.  558.  561,   29  Pac.  Rep.  1111. 

32  San  Diego  L.  Co.  v.  Wooldredge,  90  Cal.  574,  579,  27  Pac.  Rep.  431. 
See  Stimson  M.  Co.  v.  Riley    (Cal.),  42  Pac.  Rep.   1072,   1074. 

33  Stimson  M.  Co.  v.  Riley  (Cal.),  42  Pac.  Rep.  1072,  1074.  In  thia 
case  it  was  intended  to  have  twenty-five  per  cent  reserved  for  thirty- 
five  days,  and  the  other  provision  was  inserted  by  a  mistake  of 
figures. 


215      ,      STATUTORY  ORIGINAL  CONTRACTS.  §  279 

same,  yet  there  is  no  necessary  connection  between  the  two. 
It  is  easy  to  see  that  a  contract  might  be  entered  into  at  such 
a  figure  for  the  entire  work  that  a  payment  of  seventy-five 
per  cent  of  the  cost  of  the  material  and  work  completed  at 
stated  times  as  the  work  progressed  Avould  exhaust  the  entire 
contract  price  at  or  before  the  completion  of  the  building, 
so  that  there  would  be  nothing  with  which  to  meet  the  liens 
that  might  be  filed  within  thirty  days  thereafter."  ^* 

A  provision  in  a  statutory  original  contract,  that  the  final 
payment  shall  be  made  upon  the  production  of  receipts  in 
full  to  the  owner,  is  not  a  substantial  compliance  with  the 
statute  as  to  the  time  for  making  the  final  payment,  nor  even 
an  attempt  in  that  direction."^ 

§  279.  Same.  Provision  as  to  liens.  In  a  case  where  the 
contract  provided  that  the  final  payment  should  be  paid 
"  thirty-five  days  after  completion  and  date  of  acceptance, 
provided  said  building  and  premises  were  free  and  clear 
from  any  and  all  liens  and  encumbrances  arising  from  or 
created  or  placed  thereon  by  the  said  contractor,  or  any 
person  claiming  to  have  furnished  him  labor  or  materials  for 
the  erection  and  completion  of  said  work,"  and  before  the 
thirty-five  daj's  expired  the  contractor  filed  a  claim  of  lien,  it 
was  held  that  the  clause  quoted  was  not  equivalent  to  an  ex- 
press agreement  that  no  lien  should  be  filed  by  the  con- 
tractor until  after  the  expiration  of  the  thirty-five  days,  the 
complaint  being  filed  after  the  thirty-five  days.^° 

»*  WiUamette  S.  M.  L.  &  Mfg-.  Co.  v.  Los  Angeles  College  Co.,  94  Cal. 
229,  235,  29  Pac.  Rep.  629.  The  court  viewed  the  word  "cost"  from 
the  standpoint  of  the  contractor,  and  not  trom  that  of  the  owner.  The 
contract  price  was  the  cost  to  the  owner.  From  this  point,  and  to 
avoid  the  penalty  (see  §§  266,  269  et  seq.,  ante),  perhaps,  the  ruling 
would  have  been   otherwise. 

Orej^un.  The  fact  that  a  payment  has  been  made  before  thirty  days 
from  the  expiration  of  the  completion  of  the  building  will  not  have 
ti.e  effect  to  discharge  any  part  of  the  lien,  unless  such  payment  was 
made  to  the  person  furnishing  material  or  performing  work  :  Watson 
V.  Noonday  M.  Co.,  37  Oreg.  287,  60  Pac.  Rep.  994,  996. 

3^  Stimson  M.  Co.  v.  Nolan  (Cal.  App„  June  19,  1907).  91  Pac.  Rep. 
262,  quoting  from  Hampton  v.  Christensen,  148  Cal.  729,  735,  84  Pac. 
Rep.   200. 

'■"■  ^no.vIeN  V.  Baldtvin,  125  Cal.  224,  226,  57  Pac.  Rep.  988.  The  court 
say:  "  The  code  (Code  Civ.  Proc,  §  1184)  provides  that  by  the  terms  of 
the  contract  at  least  twenty-five  per  cent  of  the  contract  price  shall 


§  280  mechanics'  liens.  ,         216 

§  280.  Same.  Payment  in  money.  The  requirement  as 
to  payment  of  the  statutory  original  contract  price  in  money, 
under  section  eleven  hundred  and  eighty-four,  was  held  to 
have  no  application  to  non-statutory  original  contracts,^^  or 
to  contracts  which  were  not  original  contracts,  such  as  sub- 
contracts, and  contracts  between  the  owner  and  his  laborer.^* 
It  has  already  been  shown  ^^  that  this  clause  of  the  section  has 
been  declared  an  unconstitutional  invasion  of  the  right  of 
the  owner  in  the  possession  of  his  property,  and  to  contract 
respecting  the  use  to  which  it  may  be  subjected  and  the 
manner  in  which  it  may  be  enjoyed;*"  and  so  a  statutory 
original  contract  which  provides  for  payment  partly  in  ma- 
terials and  partly  in  money  is  not  only  valid,  but  if  the 
statute  is  otherwise  complied  with,  all  lien  claimants  have 
notice  of  its  terms,  and  are  bound  thereby ;  and  the  contract 
price,  and  not  the  value  of  the  labor  performed  or  materials 
furnished,  is  the  measure  of  the  owner's  liability.*^ 

be  made  payable  at  least  thirty-five  days  after  tlie  final  completion  of 
the  contract.  In  this  case  there  is  no  question  but  tliat  the  contract 
complied  with  the  said  section.  Section  1187  provides  that  the  con- 
tractor, at  any  time  after  the  completion  of  his  contract,  and  until 
the  expiration  of  sixty  days,  may  file  his  notice  of  lien.  Reading  the 
two  sections  together,  it  is  plain  that  by  the  terms  of  the  contract 
at  least  twenty-five  per  cent  of  the  contract  price  must  not  become  due 
until  thirty-five  daj-s  after  its  completion,  and  that  at  any  time  after 
the  completion  and  before  the  expiration  of  the  sixty  days  the  notice 
of  lien  may  be  filed.  In  fact,  the  giving  of  credit  for  a  longer  period 
would  not  affect  the  time  within  which  the  notice  of  lien  must  be 
filed.  This  is  shown  by  §  1190,  which  provides  that  suit  must  be 
brought  to  enforce  a  lien  within  ninety  days  after  filing  the  lien, 
unless  by  the  terms  of  the  contract  credit  was  given,  and  in  such  case 
within  ninety  days  after  the  expiration  of  the  credit." 

As  to  «aiver  of  nieeliunio's  lien  by  contract  inconsistent  witli  lien, 
see  1  Am.  &  Eng.  Ann.  Cas.   954. 

••"  See  §§  214,  259,  264,  ante. 

=*  See  fckym  v.  Weske  Consol.  Co.  (Cal.),  47  Pac.  Rep.  116;  Pacific 
Mut.  L.  Ins.  Co.  V.  Fisher,  109  Cal.  566,  569,  42  Pac.  Rep.  154. 

See  "Definition  of  'Original  Contract,'"  §  211,  ante. 

Material  furnished  by  o^vner  as  partial  payment  on  contract  price, 
held  valid  payment  :  Dunlop  v.  Kennedy  (Cal.),  34  Pac.  Rep.  92  (re- 
hearing  granted). 

^'  See  §§  31  et  seq.,  ante,  and  §S  264  et  seq.,  ante. 

*o  Stimson  M.  Co.  v.  Braun,  136  Cal.  122,  125,  126,  68  Pac.  Rep.  481, 
89  Am.  St.  Rep.  116,  57  L.  R.  A.  726. 

Contra,  Jones  v.  Great  Southern  F.  H.  Co.,  86  Fed.  Rep.  370,  30 
C.  C.  A.   108,  reversing  s.  c.   79  Fed.   Rep.   477    (C.   C). 

As  to  constitutionality  of  niechanic's-lien  la^vs,  see  4  Am.  &  Eng. 
Ann.   Cas.   620-622. 

"  Stimson  M.  Co.  v.  Braun,  136  Cal.  122,  125,  126,  68  Pac.  Rep. -481, 
89  Am.  St.  Rep.  116,  57  L.  R.  A.  726.  See  Hampton  v.  Christensen,  148 
Cal.   729,   735,   84   Pac.   Rep.   200. 


217  STATUTORY  ORIGINAL  CONTRACTS.  §  281 

This  provision,  however,  did  not  prohibit  the  owner  from 
contracting  to  pay  the  original  contractor  in  anything  but 
money,  the  provision  being,  "  as  to  all  liens,  except  that  of 
the  original  contractor,  the  contract  price  shall  be  payable  in 
money."  *^ 

§  281.  Same.  Contractor's  bond.  Provision  unconstitu- 
tional. The  provision  of  the  statute  '^  requiring  the  statu- 
tory original  contract,  when  filed,  to  be  accompanied  by  a 
bond  of  the  contractor,  as  already  shown,"**  after  having  been 
declared  constitutional,  as  against  the  objection  that  the  act 
should  embrace  but  one  subject,  to  be  expressed  in  the  title, 
and  that  it  was  not  a  special  law,*^  was  afterwards  held  to  be 

*"  In  this  connection  the  court  said  :  "  Upon  a  breach  of  the  agree- 
ment to  pay  one  hundred  and  fifty  dollars  in  land,  tlie  damages  would 
be  liquidated  and  certain,  and  precisely  the  same  as  they  would  be  in 
case  of  the  breach  of  an  agreement  to  pay  so  much  money.  The  ex- 
ception in  favor  of  the  contractor,  in  the  provision  of  the  code  above 
quoted,  indicates,  if  it  does  not  imply,  that  he  may  contract  and  have 
a  lien  for  the  value  of  his  work,  payable  otlierwise  than  in  money: 
and  this  is  in  perfect  accord  with  §  1183,  which  provides  that  he  shall 
have  a  lien  for  the  value  of  the  labor  done  and  materials  furnished. 
In  other  states,  under  statutes  not  substantially  different  from  our 
code  in  this  respect,  mechanics'  liens  for  the  contract  price  of  labor 
and  materials,  payable  in  property,  have  been  enforced,  and  I  have 
found  no  case  to  the  contrary  (Phillips  on  Mechanics'  Liens,  §  129,  and 
authorities  cited)  ":  Baird  v.  Peall,  92  Cal.  235,  237,  28  Pac.  Rep.  285. 
See  Schmid  v.  Busch,  97  Cal.   184,   188,   31    Pac.  Rep.   893. 

See   "  Non-Statutory   Contract,"   §§  259   et  seq.,  ante. 

Colorado.  It  is  only  in  case  the  owner  fails  to  contract  in  con- 
formity with  the  statutory  provisions  that  his  liability  extends  to  the 
value  of  the  material,  regardless  of  the  contract  price.  If  he  desires 
to  exchange  property  for  his  building  or  improvement,  instead  of 
making  the  cost  payable  in  money,  he  is  not  prohibited  from  so  doing. 
The  contract,  as  between  himself  and  his  contractor,  will  be  valid,  but 
he  enters  into  it  with  full  knowledge  tliat  in  such  case  the  lien  claims 
to  which  the  property  may  be  subjected  will  be  measured  by  amount 
in  value,  and  not  by  contract  price  :  Cliicago  L.  Co.  v.  Newcomb,  19 
Colo.   App.   265,   74  Pac.  Rep.  786,  789. 

These  tloetrines  lire  oppiised  to  tlie  well-considered  California  cases 
cited  above. 

«  Kerr's  Cjc.  Code  Civ.  Proe.,   §  1203. 

«  §  39,  ante. 

«»  Carpenter  v.  Purrey,  128  Cal.  665,  668,  61  Pac.  Rep.  369. 

Colorado.  Where  a  contractor  gives  a  bond  to  the  people  of  the 
state,  conditioned  to  discharge,  pay,  and  satisfy  all  just  claims  and 
demands  and  all  expenses  incurred  in  the  con.struction  of  a  public 
structure  and  to  pay  all  charges  justly  made  against  him  in  the  con- 
struction thereof,  the  people  may  obtain  a  judgment  for  the  sum  due 
his  subclaimants  :  People  v.  Dodge,  11  Colo.  App.  177,  52  Pac.  Rep. 
637   (breach  of  two  or  more  conditions  of  bond  —  misjoinder). 


§  282  mechanics'  ijens.  218 

unconstitutional,  as  against  the  owner/®  as  well  as  against 
the  contractor/^  on  the  ground  that  it  places  an  unreasonable 
restraint  upon  the  owner  of  property  in  regard  to  the  use 
thereof,  and  the  power  to  make  contracts,  and  as  depriving 
him  of  his  property  without  due  process  of  law ;  and  the  sec- 
tion has  been  declared  not  to  be  effective  for  any  purpose.*^ 

§  282.  Same.  Effect  of  giving  bond.  Common-law  obli- 
gation. A  bond  given  by  the  contractor  pursuant  to  section 
twelve  hundred  and  three,  which  is  thus  unconstitutional,  is 
without  consideration,  and  void ;  *^  and  a  failure  to  file  the 
bond  as  required  by  the  section  does  not  make  the  original 
contract  void,  nor  is  it  followed  by  any  of  the  consequences 
denounced  in  the  section.^"  A  bond  expressly  stating  that  it 
is  given  in  compliance  with  section  twelve  hundred  and 
three  cannot  be  sustained  as  a  voluntary  common-law  bond  f^ 
and  where  the  bond  does  not  expressly  recite  that  it  is  given 
pursuant  to  the  section,  and  it  yet  otherwise  appears  that  it 
was  executed  pursuant  thereto,  it  is  void,  and  cannot  be  en- 

<«  Gibbs  V.  Tally,  133  Cal.  373,  65  Pac.  Rep.  970,  60  L.  R.  A.  815. 
Some  of  the  reasoning  employed  in  this  opinion  is  erroneous;  for  in- 
stance, the  contractor  is  not  personally  liable  to  his  subcontractor's 
material-men,  nor  to  subcontractors  in  the  second  degree,  and  yet 
such  subclaimants  might  assert  a  lien  against  the  property  of  the 
owner.  The  owner  is  not,  therefore,  the  only  person  against  whom 
the  penalty  would  be  visited,  as  argued.  See  Stimson  M.  Co.  v.  Braiin, 
136  Cal.  122,  126,  68  Pac.  Rep.  481,  89  Am.  St.  Rep.  116,  57  L.  R.  A.  726. 

■"   Shaughnessy  v.  American  S.  Co.,  138  Cal.  543,  546,  71  Pac.  Rep.  701. 

«  San  Francisco  L.  Co.  v.  Bibb,  139  Cal.  192,  194,  72  Pac.  Rep.  964; 
San  Francisco  L.  Co.  v.  Bibb,  139  Cal.  325,  72  Pac.  Rep.  864;  Snell  v. 
Bradbury,  139  Cal.  379,  380,  73  Pac.  Rep.  150;  W.  W.  Montague  &  Co. 
V.  Furness,   145  Cal.  205,  78  Pac.  Rep.  640. 

*"  Shaughnessy  v.  American  S.  Co.,  138  Cal.  543,  546,  sub  nom. 
Shaunessy  v.  American  S.  Co.,   69   Pac.   Rep.   250. 

™  Snell  V.  Bradbury,   139  Cal.  379,  380,   73  Pac.   Rep.   150. 

='  Shaughnessy  v.  American  S.  Co.,  138  Cal.  543,  546,  sub  nom. 
Shaunessy  v.  American  S.  Co.,  71  Pac.  Rep.  701;  San  Francisco  L. 
Co.  V.  Bibb,  139  Cal.  192,  72  Pac.  Rep.  964;  W.  W.  Montague  &  Co.  v. 
Furness,   145  Cal.  205,   78  Pac.  Rep.   640. 

Hatvaii.  Seal  not  necessary:  See  Campbell  v.  Manu,  4  Hawn.  459; 
In    re  Congdon,    6   Hawn.    633. 

AVasliington.  Where  a  bond  contained  all  the  conditions  required 
by  1  Hill's  Code,  §  2415.  a  recital  that  it  was  taken,  not  as  a  statutory, 
but  as  a  common-law  bond,  does  not  vitiate  it,  and  subclaimants  may 
avail  themselves  of  the  bond:  Baum  v.  Whatcom  Co.,  19  Wash.  626, 
54  Pac.  Rep.  29;  State  v.  Liebes,  19  Wash.  589,  54  Pac.  Rep.  26,  over- 
ruling, on  this  point.  Sears  v.  W^illiams,  9  Wash.  428,  37  Pac.  Rep.  665, 
38  Pac.  Rep.  135,  39  Id.  280. 

Action  for  failinji;  to  take  bond  under  same  section  :  See  Rounds  v. 
Whatcom  Co.,  22  Wash.   106,   60  Pac.  Rep.   139. 


II 


23  9  STATUTORY    ORIGINAL    CONTRACTS.  §283 

forced  as  a  common-law  obligation.^-  When,  however,  no 
reference  is  made  in  the  bond  to  section  twelve  hundred  and 
three,  and  the  bond  itself  fulfils  all  the  requirements  of  the 
laAV  as  a  common-law  bond,  it  will  be  upheld  as  such ;  ^^  and 
the  owner  may  take  such  a  common-law  bond  for  his  own 
protection.®* 

§  283.  Same.  Previous  decisions  concerning  bond.'''^  The 
bond  provided  for  in  section  twelve  hundred  and  three  was 
required  to  be  filed  at  the  same  time  with  the  statutory  origi- 
nal contract ;  otherwise  no  recovery  could  be  had  thereon ; 
and  it  was  held  the  duty  of  the  owner  and  the  contractor  to 
see  that  the  bond  was  properly  filed,  and  for  a  failure  to  do 
so,  subclairaants  had  their  remedy  against  the  owner  and 
contractor  for  damages. ^^ 

^-  San  Francisco  L.  Co.  v.  Bibb,  139  Cal.  192,  72  Pac.  Rep.  964;  and 
see  San  Francisco  L.  Co.  v.  Bibb,  139  Cal.  325,  73  Pac.  Rep.  864.  But 
see  Towle  v.  Sweeney,  2  Cal.  App.   29,  83  Pac.  Rep.  74. 

•"'3  Alcatraz  M.  H.  Assoc,  v.  United  States  F.  &  G.  Co.,  3  Cal.  App. 
338,   341,   85  Pac.  Rep.  156,  157. 

Washington.  In  a  suit  on  the  bond  referring  to  the  contract,  con- 
tract and  bond  are  to  be  read  together  :  Peters  v.  Mackay,  20  Wash. 
172,   54   Pac.   Rep.   1122. 

=••   Hampton  v.  Christensen,  148  Cal.  729,  735,  84  Pac.  Rep.  200. 

5=  Bond  held  insuflioient,  under  §1203,  when  given  to  "  F.  [the 
owner],  his  legal  representatives  or  assigns,"  and  not  in  terms  invir- 
ing  to  the  benefit  of  any  one  else  :  See  Gibbs  v.  Tally  (Cal.),  63  Pac. 
Rep.  168   (reversed,  133  Cal.  373,  69  Pac.  Rep.  970). 

Complaint  in  action  on  bond:  See  Cai-penter  v.  Furrey,  128  Cal.  663, 
669,  61  Pac.  Rep.  369. 

IJmitation  of  action  on  bond  :  See  Towle  v.  Sweeney,  2  Cal.  App.  29, 
83   Pac.   Rep.   74. 

Action  for  damages  for  failure  to  file  bond:  See  Gibl)S  \.  Tally, 
133  Cal.  373,  69  Pac.  Rep.  970,  63  Pac.  Rep.  168,  60  L.  R.  A.  815  (meas- 
ure of  damages;  action  for  damages  not  affected  by  bringing  action 
to  foreclose  lien). 

Tlie  l>ond  i.s  collateral  oblii^atioii.  enforcesible  by  .•*iib<-l:iiiii:)iits  <uil.\- 
to  the  extent  that  their  claims  could  have  been  enfoi-ced  against  liie 
contractors  :    Towle  v.  Sweeney,  2  Cal.  App.  29,   83  Pac.  Rep.   74. 

As  to  §  ItiOli,  repealed  by  act  requiring  coutractor.s  to  jsive  bonds  to 
secure  tlie  claims  of  material-men  and  others  employed  upon  state, 
municipal,  and  others  ])ul)lic  works  (Stats.  1897,  p.  201,  Ilennins's  Gen- 
eral Laws,  p.  1104),  see  Union  S.  M.  Works  v.  Dodge,  129  Cal.  390,  394, 
62  Pac.  Rep.  41.  The  latter  act  is  independent  of  the  general 
mechanic's-lien  law:  French  v.  Powell,  135  Cal.  636,  639,  68  Pac. 
Rep.    92. 

Bond  given  by  contractor  on  public-school  house,  under  §  1203, 
Kerr's  Cyc.  Code  Civ.  I'roc,  held  valid:  Union  S.  M.  Works  v.  Dodge, 
129  Cal.   390,   394,   62  Pac.   Rep.   41. 

^^  Mangrum  v.  Truesdale,  128  Cal.  145,  146.  60  Pac.  Rep.  775.  dis- 
tinguishing Kiessig  v.  AUspaugh,  91  Cal.  236,  27  Pac.  Rep.  662,  99  Cal. 
453,  34  Pac.  Rep.  106. 


§  284  mechanics'  liens.  220 

Sureties  on  the  bond  given  under  section  twelve  hundred 
and  three  could  not  object  to  their  o^vn  failure  to  justify,  as 
required  by  section  ten  hundred  and  fifty-seven  of  the  Code 
of  Civil  Procedure,  that  provision  being  for  the  benefit  of 
the  obligees ;  ^^  and  neither  demand  nor  notice  was  required 
in  an  action  on  such  bond.^* 

In  a  suit  on  such  bond,  in  which  the  questions  of  the  con- 
stitutionality of  section  twelve  hundred  and  three  of  the 
Code  of  Civil  Procedure,  relating  thereto,  and  the  validity  of 
the  obligation  upon  which  the  action  was  brought,  were 
directly  presented,  argued  by  counsel,  and  decided  by  the 
court,  on  a  former  appeal,  on  which  it  was  held  that  the 
bond  in  question  derives  force  from  its  provisions,  and  not 
from  the  statute,  and  that  it  may  be  enforced  as  a  voluntary 
common-law  obligation,  without  reference  to  the  constitu- 
tionality of  the  law,  the  opinion  of  the  first  appeal  was 
res  adjudicata,  and  was  the  law  of  the  case,  and  not  obiter, 
but  binding  in  the  same  case  upon  a  later  appeal. ^^ 

§  284.  Provisions  avoiding  certain  clauses.  Impairment  of 
liens.  Statutory  provision.  The  mechanic's-lien  law ""  pro- 
vides :  "  It  shall  not  l)e  competent  for  the  owner  and  con- 
tractor, or  either  of  them,  by  any  term  of  their  contract,  or 
otherwise,  to  waive,  afi^ect,  or  impair  the  claims  and  liens  of 

"  Carpenter  v.  Furrey,  128  Cal.  665,  669,  61  Pac.  Rep.  369. 

58  Carpenter  v.  Furrey,  128  Cal.  665,  667,  61  Pac.  Rep.  369. 

59  People's  L.  Co.  v.  Gillard  (Cal.  App.,  April  24,  1907),  90  Pac.  Rep. 
556,  s.  c.  136  Cal.  55,  57,  68  Pac.  Rep.  576. 

-Washington.  Held  that  act  of  1893,  ch.  xxiv,  p.  32,  §  1,  requiring 
railroad  company  to  file  a  bond  with  auditor,  does  not  mean  tiiat 
when  a  railroad  company  fails  to  take  a  bond,  an  action  will  lie 
directly  against  the  company,  and  that  no  notice  of  liens,  as  required 
by  the  statute,  are  necessary,  but  merely  means  that  railroad  property 
is  excepted  from  liens  where  the  specific  security  is  taken,  and  a  fail- 
ure to  take  the  bond  not  only  subjects  the  property  to  a  lien,  but  the 
railroad  company  is  also  made  personally  liable  in  an  action  for  tlie 
enforcement  of  the  lien,  as  additional  security:  Laidlaw  v.  Portland 
V.  &  Y.  R.  Co.,  42  Wash.  292,  84  Pac.  Rep.  855  (act  held  constitutional 
as  against  objection  to  title).  See  also  Armour  v.  Western  Const.  Co., 
36  W^ash.  529,  78  Pac.  Rep.  1106. 

Action  on  contractor's  bond  for  a  pubUc  improvement,  under  Bal- 
linger's  Ann.  Codes  and  Stats.,  §5925:  Huggins  v.  Sutherland.  39 
Wash.  552,  82  Pac.  Rep.  112;  Crane  Co.  v.  ^tna  I.  Co.  (Wash.),  86  Pac. 
Rep.   849. 

«•  Kerr's  Cjc  Code  Civ.  Proc,  §  1201.        ' 


221  STATUTORY   ORIGINAL    CONTRACTS.  §  285 

other  persons,  whether  with  or  without  notice,  except  by 
their  written  consent,  and  any  term  of  the  contract  to  that 
effect  shall  be  null  and  void."  ®^ 

§  285.  Same.  Provision,  when  not  applicable.  This  pro- 
vision does  not  apply  to  an  instalment  payable  at  the  comple- 
tion of  the  building,  nor  to  the  waiver  of  the  certificate  as 
evidence  of  such  completion  ;  the  payment  of  such  instalment 
does  not  affect  or  impair  any  claim  or  lien  of  a  claimant, 
whose  right  would  not  be  different  if  the  payment  had  not 
been  made  until  two  days  later,  when  the  certificate  was 
given."- 

In  the  case  of  a  non-statutory  contract,  it  has  been  shown 
that  premature  payments  may  be  made,  and  that,  at  least  as 
far  as  regards  the  rights  of  claimants  under  notice  of  their 
claims  to  the  owner,  when  nothing  is  due  to  the  contractor, 
the  section  has  no  application. "^ 

"   Waiver    or    impairineut    of   liens    by    mutter.^    deliors    the    contract 

will  be  considered  later. 

See,   generally,   note   19   Am.   St.   Rep.    699.     See  also   Russ   L    Co    v 

Garrettson,    87   Cal.   589,   593,   25   Pac.   Rep.   747. 

Utali.     See  Teahen  v.  Nelson,  6  Utah  363,  23  Pac.  Rep.  764   (1888) 
«='  Valley  L.  Co.  v.  Struck,  146  Cal.  266,  271,  80  Pac.  Rep.  405 
»^  Southern  Cal.  L.  Co.  v.  Jones,  133  Cal.  242,  245,  65  Pac   Reo    378 
See   §  266,   ante. 


S  286  MECHANICS     LIENS. 


222 


CHAPTER    XVI. 

BUILDING   CONTRACTS    (CONTINUED). 
B.     Statutory  Kkquirements  Essential  to  Validity  of  Contract. 

§  286.  Scope  of  discussion. 

§  287.  Statutory  provision. 

§  288.  What  not  essential  to  validity  of  contract. 

§  289.  Construction  of  provision. 

§  290.  Statutory  original  contract  must  be  entered  into  before  work 
is  commenced. 

§  291.  Same.     Estoppel  as  to  invalidity  of  contract. 

§  292.  The  statutory  original  contract  must  be  in  writing. 

§  293.  The  statutory  original  contract  must  be  subscribed. 

§  294.  Filing  contract. 

§  295.  The  duty  of  filing  the  contract. 

§  296.  Necessity  and  object  of  filing  contract. 

§  297.  Whole  contract  must  be  filed. 

§  298.  Same.     Reference  to  matters  dehors  the  contract. 

§  299.  Same.     Where  the  plans  and  specifications  are  referred   to. 

§  300.  Memorandum  of  contract.     Statutory  provision. 

§  301.  Same.     General  effect  of  provision. 

§  302.  Same.     Purpose  and  object. 

§  303.  Same.     What  not  required  in  memorandum. 

§  304.  Same.     Contract,    or    copy    thereof,    as    memorandum.     Gen- 
eral principles. 

§  30.5.  Same.     Names  of  all  the  parties  to  the  contract. 

§  306.  Same.     Description  of  the  property  to  be  affected  thereby. 

§  307.  Same.     Statement  of  the  general   character  of  the  work  to 
be  done. 

§  308.  Same.     Statement  of  work.     General  principles, 

§  309.  Same.     Reference  to  plans  and  specifications. 

§  310.  Same.     Reference  to  detail  drawings. 

§  311.  Same.     Payments. 

§  312.  Time  of  filing  contract  or  memorandum. 

§  313.  Place  of  filing  contract  or  memorandum. 

§  314.  Conspiracy  as  to  contract  price. 

B.      STATUTORY    REQUIREMENTS    ESSENTIAL    TO    VALIDITY    OP 

CONTRACT. 

§  286.  Scope  of  discussion.  The  expression  "  statutory 
original  contract,"  as  used  in  this  book,  has  ;.iready  been 
defined.' 

»  See  §  214,  ante. 


223  REQUIREMENTS    ESSENTIAL    TO    VALIDITY.  §  287 

The  discussion  in  this  chapter  has  no  application  to  con- 
tracts other  than  "  statutory  original  contracts,"  and  there- 
fore does  not  apply  to  "  non-statutory  original  contracts," 
such  as  implied  contracts,  or  contracts  where  the  price  does 
not  exceed  one  thousand  dollars,  nor  to  contracts  for  street- 
work,  etc.,  under  the  provisions  giving  a  lien  therefor.- 

§  287.  Statutory  provision.  Code  section  eleven  hundred 
and  eighty-three^  provides:  "In  case  of  a  contract  for  the 
work  between  the  reputed  owner  and  his  contractor,  the  liens 
shall  extend  to  the  entire  contract  price,  and  such  contract 
shall  operate  as  a  lien  in  favor  of  all  persons,  except  the  con- 
tractor, to  the  extent  of  the  whole  contract  price,  and  after 
all  such  liens  are  satisfied,  then  as  a  lien  for  any  balance  of 

Colorado.  The  effect  of  failing  to  comply  with  the  provisions  of 
the  statute  with  reference  to  statutory  original  contracts  is  not  to 
render  the  contract  void,  but  simply  to  give  a  lien  independently  of 
the  contract,  for  the  value  of  the  labor  or  materials  (3  Mills's  Ann. 
Stats.,  2d  ed.,  §  2867^. 

-  Kerr's  Cyc.  Code  Civ.  Proc.,  §  111)1.  See  Kreuzberger  v.  Wingfield, 
96  Cal.   251,   257,   31   Pac.  Rep.   109. 

And  see  §§  211,  214,  259-263,  ante. 

Colorado.  Many  of  the  provisions  of  §§  1  and  2,  Laws  1899,  pp.  261. 
265,  3  Mills's  Ann.  Stats.,  2d  ed.,  §§  2867,  2868,  being  identical  with 
§§  11S3  and  1184  of  the  Code  of  Civil  Procedure  of  California,  may  be 
interpreted  in  the  light  of  the  California  decisions. 

It  must  be  remembered,  however,  that  while  the  statutory  original 
contract  in  this  state  must  contain  provisions  similar  to  those  re- 
quired under  the  California  statute,  a  failure  to  coinply  with  the 
statute  does  not  render  the  contract  void. 

Kecordation  of  oriK'iuuI  contract.  VVIieu  required.  The  statute  re- 
quiring certain  original  contracts  to  be  recorded  and  to  be  of  a  cer- 
tain form  to  enable  the  contractor  to  secure  a  lien  for  himself  and  to 
permit  the  owner  to  confine  the  liability  to  which  his  proi)erty  may 
be  subjected  to  the  contract  price,  does  not  prohibit  them  from  enter- 
ing into  another  and  different  contract.  Subclaimants  are  not  bound 
by  the  terms  of  a  non-statutory  original  contract,  and  a  contract 
varying  in  important  particulars  from  the  contract  the  terms  of  which 
are  contained  in  the  statute,  affects  the  rights  of  subclaimants, 
whether  they  have  notice  or  knowledge  of  the  terms  of  such  contract 
or  not:  Chicago  L.  Co.  v.  Newcomb,  19  Colo.  App.  265,  74  Pac.  Rep.  786 
(Laws  1893,  ch.  cxvii,  p.  313);  and  subclaimants  are  not  bovmd  by  the 
statutory  original  contract  upon  failure  of  owner  or  contractor  to  file 
propeiiy  such  a  contract:  Chicago  L.  Co.  v.  Newcomb,  supra. 

•'  Kerr's  Cyc.  Code  Civ.  Proc,  §  1183,  as  amended  March  15,  1887. 
This  amendment  inserted  the  word  "  reputed  "  before  "  owner,"  among 
other  things.  Whether  these  provisions  are  only  applicable  to  cases 
where  the  "  reputed  owner  "  contracts  with  the  contractor  does  not 
seem  to  have  had  the  attention  of  the  courts  :  See  Dunlop  v.  Kennedy 
(Cal.),  34  Pac.  Rep.  92. 

Amendments  of  1890  and  11)03  did  not  affect  these  provisions. 


§  288  mechanics'  liens.  224 

the  contract  price  in  favor  of  the  contractor.  All  such  con- 
tracts shall  be  in  writing  when  the  amount  agreed  to  be  paid 
thereunder  exceeds  one  thousand  dollars,  and  shall  be  sub- 
scribed by  the  parties  thereto  ;  and  the  said  contract,  or  a 
memorandum  thereof,  setting  forth  the  names  of  all  the  par- 
ties to  the  contract,  a  description  of  the  property  to  be 
affected  thereby,  together  with  a  statement  of  the  general 
character  of  the  work  to  be  done,  the  total  amount  to  be 
paid  thereunder,  and  the  amounts  of  all  partial  payments, 
together  with  the  times  when  such  payments  shall  be  due  and 
payable,  shall,  before  the  work  is  commenced,  be  filed  in  the 
office  of  the  county  recorder  of  the  county,  or  city  and 
county,  where  the  property  is  situated,  who  shall  receive  one 
dollar  for  such  filing;  otherwise,  they  shall  be  wholly  void, 
and  no  recovery  shall  be  had  thereon  by  either  party  thereto  ; 
and  in  such  case,  the  labor  done  and  materials  furnished  by 
all  persons  aforesaid,  except  the  contractor,  shall  be  deemed 
to  have  been  done  and  furnished  at  the  personal  instance  of 
the  owner,  and  they  shall  have  a  lien  for  the  value  thereof." 
The  requirements  of  the  statutory  original  contract,  briefly 
stated,  are:  1.  It  must  be  in  writing;  2.  It  must  be  sub- 
scribed by  the  parties  thereto ;  3.  The  said  contract,  or  the 
memorandum  designated  in  the  statute,  must  be  filed  before 
the  work  is  commenced,  because  the  clause  in  the  extract 
above  quoted  from  section  eleven  hundred  and  eighty-three, 
commencing  "  setting  forth  the  names  of  all  the  parties,"  etc., 
modifies  the  word  "  memorandum,"  and  not  the  word  "  con- 
tract," preceding  it.*  It  is  assumed,  of  course,  that  the  ele- 
ments of  a  common-law  contract  exist. 

§  288.  What  not  essential  to  validity  of  contract.  While 
the  statute  requires  certain  essentials  to  exist  in  order  that  a 
statutory  original  contract  may  be  valid,  it  is  obvious  that  no 
other  than  such  requirements  are  necessary  to  its  validity; 
upon  no  other  default  does  the  statute  declare  the  contract 
void.^  The  provision  in  section  eleven  hundred  and  eighty- 
three  does  not  require,  and  it  is  not  necessary  to  effect  its 

♦  Snen  V.  Bradbury,  139  Cal.  379.  381.  382,  73  Pac.  Rep.   150; 

»  San  Diego  L.  Co.  v.  W^ooldredge,  90  Cal.  574.  578,  27  Pac.  Rep.  431. 


225  REQUIREMENTS   ESSENTIAL   TO   VALIDITY.  §  289 

purpose,  that  the  statutory  origiual  contract  shall  show  on  its 
face  the  total  amount  to  be  paid  thereunder,  nor  whether  the 
amount  is  greater  or  less  than  one  thousand  dollars.  Such 
requirement  applies  only  to  the  memorandum;  and  because 
the  memorandum  must  state  the  "  total  amount  to  be  paid," 
it  is  not  a  necessary  inference,  equivalent  to  a  statutory  com- 
mand, that  the  contract  shall  also  state  that  amount,  either  in 
one  sum  or  in  detail.  The  legislature  assumed  that  building 
contracts  would  ordinarily  recite  the  whole  contract  price, 
and  in  that  view  enacted  the  provision  concerning  the  mem- 
orandum. The  contract  can  state  the  instalments,  if  any,  and 
the  twenty-five  per  cent  payment  thirty-five  days  after  com- 
pletion, without  stating  either  the  amount  of  each  payment 
or  the  total  amount  of  them  all;  and  in  order  to  avoid  the 
imposition  of  a  penalty,  the  foregoing  construction  was 
adopted  by  the  supreme  court."  Neither  does  the  statute 
make  the  statutory  original  contract  void  by  reason  of  its 
not  containing  a  description  of  the  property  upon  which  the 
building  is  to  be  erected ;  ^  although  the  memorandum  of  the 
contract  is  required  to  contain  such  a  description  of  the  prop- 
erty to  be  affected  thereby.^ 

§  289.  Construction  of  provision.  The  statute,  imposing, 
as  it  does,  a  liability  upon  the  owner  beyond  the  price  he  con- 
tracted to  pay,  in  favor  of  a  subcontractor  with  whom  he  has 
no  contract  relations,  is  penal  as  well  as  remedial,  and  there- 
fore, whilst  it  must  have  such  construction  as  will  reasonably 
effectuate  its  remedial  purposes,  must  be  strictly  confined  to 
such  purpose.  No  merely  technical  construction  can  be  in- 
dulged for  the  purpose  of  visiting  a  penalty  upon  the  owner, 
unless  there  has  been  a  substantial  failure  to  comply  with 
the  law,  such  as,  if  continued,  would  defeat  the  remedial  pur- 
poses of  the  statute ;  but  if  there  be  a  reasonable  doubt  as  to 

«  SneU  V.  Bradbury,  139  Cal.  379,  381,  382,  73  Pac.  Rep.  150. 

'  San  Diego  L.  Co.  v.  Wooldredge,  90  Cal.  574,  578,  27  Pac.  Rep.  431; 
Yancy  v.  Morton,  94  Cal.  558,  561,  29  Pac.  Rep.  1111.  But  see  dictum 
in  Sidllnger  v.  Kerkow,  82  Cal.  42,  45,  22  Pac.  Rep.  932. 

»  Kerr's  Cyc.  C>.ile  Civ.  Proc,  §  1184. 

See  ■'  Memorandum."  §S  300  et  seq.,  post. 

It  thus  appears  that  tlie  memorandum  should  contain  matters  which 
may  not  be  contained  in  the  original  contract. 
Mech.  Liens  —  15 


§§  290-292  mechanics'  liens.  226 

the  construction  of  the  statute,  or  as  to  whether  the  defend- 
ant complied  with  the  contract,  the  owner  should  have  the 
benefit  of  the  doubt.^ 

§  290.  Statutory  original  contract  must  be  entered  into 
before  work  is  commenced.  Under  the  provisions  of  the 
mechanic's-lien  law,  the  statutory-  original  contract  is  re- 
quired to  be  entered  into  before  the  commencement  of  work 
on  the  building  or  other  improvement ;  and  a  statutory  origi- 
nal contract  entered  into  between  the  owner  and  the  con- 
tractor after  the  commencement  of  the  work  is  void  as  to  all 
sublien-holders,  whether  before  or  after  the  commencement 
of  the  work.^° 

§  291.  Same.  Estoppel  as  to  invalidity  of  contract.  Where 
the  original  statutory  contract  is  invalid  by  reason  of  the 
parties  to  such  contract  having  failed  to  sign  the  plans  and 
specifications  under  and  in  accordance  with  which  the  build- 
ing or  other  improvement  is  to  be  made,  although  such  plans 
and  specifications  are  referred  to  in  and  attached  to  the 
written  contract,  the  material-man  is  not  estopped  from 
claiming  that  the  contract  is  void  by  reason  of  the  fact  that 
he  has  contracted  to  furnish  the  lumber  for  such  improve- 
ment, and  has  rendered  one  bill  with  express  reference  to  the 
plans  and  specifications.^^ 

§  292.  The  statutory  original  contract  must  be  in  writing. 
The  provision  of  the  mechanic's-lien  law  requiring  a  writ- 
ing applies  only  to  statutory  original  contracts.^-     If  the 

9  Joost  V.  Sullivan,  111  Cal.  286,  296,  43  Pac.  Rep.  896. 

See  "  Construction,"  §S  24-27,  ante,  and  "  Effect  of  Non-compliance," 
§§  315  et  seq.,  post. 

!»  Stimson  M.  Co.  v.  Nolan  (Cal.  App.,  Aug.  17,  1907),  91  Pac.  Rep.  262. 

"  The  court  said,  however:  "They  probably  did  not  then  know  that 
the  contract  was  void.  They  have  not  misled  the  defendants,  nor  in- 
duced them  to  change  their  position,  and  it  does  not  appear  that  they 
have  expressed  knowledge  of  the  invalidity  while  dealing  with  the 
contractor":  West  Coast  L.  Co.  v.  Knapp,  122  Cal.  79,  54  Pac.  Rep.  533. 

"  Kerr's  Cyc.  Code  Civ,  Proe.,  §  1183,  and  note;  Madera  F.  &  T.  Co. 
V.  Kendall,  120  Cal.  182,  52  Pac.  Rep.  304,  65  Am.  St.  Rep.  117;  Sid- 
linger  v.  Kerkow,  82  Cal.  42,  44,  22  Pac.  Rep.  932.  See  Rebman  v.  San 
Gabriel  Valley  L.  &  \V."Co.,  95  Cal.  390,  393,  30  Pac.  Rep.  564;  Kreuz- 
berger  v.  Wingfleld,  96  Cal.  251,  257,  31  I'ac.  Rep.  109;    Barber  v.  Rey- 


227  REQUIREMENTS   ESSENTIAL    TO   VALIDITY.  §  292 

writing  signed  b}'  the  parties  does  not  of  itself  determine 
what  constitutes  the  contract,  then  it  is  not  wholly  in  writ- 
ing, as  is  required,  and  cannot,  as  a  whole,  be  filed  in  the 
recorder's  office. ^^ 

When  the  plans  and  specifications  are  referred  to  in  the 
contract  as  having  been  signed  by  the  parties  to  the  con- 
tract, when  in  fact  they  were  not  so  signed,  the  contract  is 
inchoate. ^"^ 

Contract  referring  to  adjoining  house  as  pattern.  A  build- 
ing contract,  otherwise  valid,  is  not  rendered  void  because  of 
a  reference  therein  to  an  adjoining  house  and  certain  work 
therein  as  patterns  and  samples  for  corresponding  work  pro- 
vided for  in  such  contract,  instead  of  setting  forth  in  detail, 
in  plans  and  specifications,  the  work  to  be  done  and  then 
referring  to  such  plans  and  specifications.^^ 

nolds,  44  Cal.  519.  533,  s.  c.  33  Cal.  497,  502  (under  §  2  of  the  act  of 
1862,  requiring  building  contracts  for  a  price  of  over  two  hundrec' 
dollars  to  be  in  writing,  etc.,   otherwise  they  were  void). 

See  "  Alterations,"  §§  326  et  seq.,  post. 

Colorado.  A  contract  by  which  the  owner  of  a  mining  claim 
agrees  to  sell  an  interest  tiierein,  in  consideration  of  the  expenditure 
of  a  certain  sum  for  its  development,  is  not  within  §  1,  p.  316,  Laws 
1893,  and  the  contract  need  not  be  recorded:  Maher  v.  Shull,  11  Colo. 
App.   322,   52   Pac.   Rep.    1115. 

13  "What  occurred  after  the  contract  was  signed,  by  «ay  of  putting 
It  beyond  doubt  as  to  what  plans  and  specifications  were  intended,  such 
as  by  attaching  them  togetlier  and  filing  them  as  one  document,  and 
building  a  house  upon  the  lots  indicated,  according  to  the  plans  and 
specifications,  can  have  no  bearing  upon  the  question  whetlier  the 
whole  contract  was  rediiced  to  writing  and  signed  by  the  parties. 
Tlie  reference  is  to  specifications  signed  by  the  parties.  .  .  .  Under 
general  rules  pertaining  to  contracts,  one  could  make  a  builder's  con- 
tract so  referring  to  plans  and  specifications  as  to  give  very  little  in- 
formation as  to  what  the  contractor  had  agreed  to  do,  unless  the 
plans  and  specifications  can  be  found.  The  material  part  of  the  con 
tract  may  really  be  in  them.  Independently  of  the  statute,  one  miglit 
agree  to  build  in  San  Diego  a  house  which  should  in  all  respects  be 
a  duplicate  of  a  designated  house  in  London.  Such  a  contract  would 
not  help  persons  who  proposed  to  furnisli  material,  or  perforni  labor 
upon  tlic  house.  Not  much  more  satisfaction  would  be  afforded  by 
placing  on  file  plans  and  specifications  which,  when  found,  do  not 
accord  with  the  reference  made  in  tlie  written  contract.  And  certainly 
it  cannot  be  contended  that  in  such  case  the  plans  and  specifications 
have  been  so  referred  to  as  to  become  part  and  parcel  of  the  contract 
signed  by  the  parties"  :  West  Coast  L.  Co.  v.  Knapp,  122  Cal.  79,  83, 
54  Pac.  Rep.  533,  534.  See  Donnelly  v.  Adams,  127  Cal.  24,  25,  59  Pac. 
Rep.    208. 

See  §208,  ante,  and  §§309,  310.  post. 

"  Donnelly  v.  Adams,  115  Cal.  129,  46  Pac.  Rep.  916.  127  Cal.  24,  59 
Pac.   Rep.   208. 

'■'  California  I.  Const.  Co.  v.  Bradbury,  13S  Cal.  328,  71  Pac.  Rep. 
346,   617. 


§  293  mechanics'  liexs.  228 

§  293.     The  statutory  original  contract  must  be  subscribed. 

The  mechanic's-lien  law  ^''  reciuires  that  the  statutory  origi- 
nal contract  "  shall  be  subscribed  by  the  parties  thereto."  ^^ 
The  contract  is  not  void,  where  it  recited  the  construction  of 
a  building  conformable  to  certain  drawings  and  specifica- 
tions "  signed  hj  the  parties  and  hereunto  annexed,"  and  the 
contract  consisted  of  three  items  or  parts  fastened  together 
in  the  following  order:  1.  The  formal  contract,  signed  on 
the  last  page  thereof  by  the  parties;  2.  The  specifications, 
signed  only  by  the  owner;  and  3.  The  drawings  or  plans, 
the  last  or  bottom  sheet  of  which  was  signed  by  the  con- 
tractor and  owner.^^ 

«  Kerr's  Cyc.  Code  Civ.  Proc,  §  1183,  and  note. 

"  Joost  V.  Sullivan,  111  Cal.  286,   294,   43  Pac.  Rep.   896. 

It  vras  held  by  the  commissioners,  in  Dunlop  v.  Kennedy  (Cal.),  34 
Pac.  Rep.  92,  that  the  statute  does  not  require  that  the  contract  shall 
be  sig-ned  by  the  owner,  and  that  it  is  sufficient  if  it  is  signed  by  the 
"reputed  owner":  fee  §§28  et  seq.,  §287,  and  note,  ante;  but  this 
case  was  subsequently  heard  in  bank,  and  the  decision  of  the  commis- 
sioners reversed,  this  question  being  eliminated  from  the  inquiry: 
Dunlop  V.  Kennedy,  102  Cal.  443,  36  Pac.  Rep.  765.  See  Donnelly  v, 
Adams,  127  Cal.  24,  25,  59  Pac.  Rep.  208. 

Compare  Kerr'-s  Cyc.  Civ.  Code,  §§  1276,  1624.  and  notes. 

A.S  to  signing  plans  and  specifications  referred  to  in  the  contract, 
under  §  1183 1^,  Code  Civ.  Proc.  (repealed.  Stats.  1903,  p.  21),  see  Sulli- 
van V.  California  R.  Co.,  142  Cal.  201,  203,  204,  75  Pac.  Rep.  767. 

^*  Signingr.  DraTiingrs  and  specifications.  In  Howe  V.  Schmidt,  151 
Cal.  436,  438,  90  Pac.  Rep.  1056,  the  court  said:  "The  contention  is 
that  the  reference  in  the  contract  being  to  drawings  and  specifica- 
tions '  signed  by  the  parties,'  as  well  as  annexed,  the  failure  of  one 
of  the  parties  to  place  his  signature  somewhere  upon  the  speci- 
fications made  it  impossible  to  identify  the  specifications  intended, 
except  by  the  aid  of  oral  evidence,  and  rendered  the  contract  void. 
We  see  no  good  reason,  however,  for  holding  that  this  reference  to 
the  '  drawings  and  specifications,  .  .  .  signed  by  the  parties  and  here- 
unto annexed,'  is  not  fully  satisfied  by  pages  of  specifications  and 
sheets  of  drawings  fastened  together  and  annexed  to  the  contract,  and 
signed  on  the  last  page  thereof  by  the  parties.  So  fastened  together 
and  annexed  to  the  contract,  the  drawings  and  specifications  in  fact 
constituted  one  document,  fully  identified  as  to  the  signatures  of  the 
parties  in  the  manner  required  by  the  contract  by  the  signatures  on 
the  last  page.  This  being  the  situation,  it  is  unnecessary  to  deter- 
mine what  would  have  been  the  effect  had  the  drawings  and  specifi- 
cations been  simply  'annexed,'  without  any  compliance  with  the  re- 
quirement as  to  signing,  and  the  cases  cited  by  appellants  in  support 
of  their  claim  are  inapplicable.  Worden  v.  Hammond,  37  Cal.  61, 
was  a  case  where  the  agreement  was  to  build  according  "to  the  draft, 
plan,  and  explanation  hereto  annexed,  marked  "  A,"  '  and  no  draft, 
plan,  or  explanation  was  attached,  and.  it  was  sought  to  show  by 
parol  that  an  original  paper  produced  by  plaintiff  was  the  one  referred 
to.  It  was  held  that,  where  the  reference  is  false,  it  cannot  be 
helped   out   by    oral   evidence;    the   court   saying   that   if   the   written 


229  REQUIREMENTS    ESSENTIAL    TO    VALIDITY.  §  294 

The  actual  time  of  signing  is  immaterial,  where  limited  to 
work  done  after  the  signing;  but  the  dates  attached  to  the 
signatures  of  claimants,  whether  they  are  the  true  dates 
when  the  signatures  were  written  or  not,  are,  in  the  absence 
of  satisfactory  evidence  to  the  contrary,  conclusive  evidence 
that  the  labor  performed  after  that  date  was  done  under  its 
terms  and  conditions. ^^ 

§  294.  Filing  contract.^"  Before  the  work  is  commenced, 
either  the  statutory  original  contract,-^  or  a  sufficient  mem- 
contract  had  contained  a  reference  to  the  specifications  in  such  a 
manner  that  their  connection  would  be  apparent  upon  their  produc- 
tion, it  would  be  regarded  as  a  sufficient  compliance  with  the  statute. 
San  Francisco  L.  Co.  v.  O'Neil,  120  Cal.  455,  52  Pac.  Rep.  728,  was  a 
case  wliere  the  contract  was  held  void,  simply  because  the  entire  con- 
tract was  not  filed  as  required  by  law;  a  sun-print  copy  of  the  plans 
and  drawings  having  been  filed  instead  of  the  original.  West  Coast 
L.  Co.  V.  Knapp,  122  Cal.  79,  54  Pac.  Rep.  533,  was  a  case  where  the 
drawings  and  specifications  were  referred  to  simply  as  '  identified  by 
the  signatures  of  the  parties,'  and  no  plans  and  specifications  corre- 
sponding to  this  reference  were  produced.  In  Donnelly  v.  Adams,  115 
Cal.  129,  46  Pac.  Rep.  916,  the  only  reference  was  to  'plans,  drawings, 
and  specifications,  .  .  .  made  by  C.  El.  Henriksen,  .  .  .  and  which  are 
signed  by  the  parties  hereto,  and  are  to  be  kept  and  remain  in  the 
office  of  said  architect,'  and  there  were  no  signed  plans  and  specifica- 
tions. In  TVillamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co.,  94 
Cal.  229,  29  Pac.  Rep.  629,  the  contract  provided  that  the  work  should 
be  done  'conformable  to  the  drawings  and  specifications  made  by  R.  B. 
Young,  architect,  and  signed  by  the  parties,  and  hereto  annexed,'  and 
no  plans  and  specifications  were  in  fact  annexed.  None  of  these  cases 
lend  support  to  the  contention  that  the  plans  and  specifications  an- 
nexed to  the  contract  in  this  case  did  not  fully  correspond  with  the 
reference." 

'■'  Skym  V.  Weske  Consol.  Co.   (Cal.),  47  Pac.  Rep.  116. 

-'"  Failure  to  file  contract  to  build  exten.sion  of  railroad.  Avoiding 
same:     Bringham  v.   Knox,   127   Cal.   40,    59   Pac.   Rep.    198. 

=■  Kerr's  Cyc.  Code  Civ.  Proc,  §  1183,  and  note.  See  Giant  Powder 
Co.  V.  San  Diego  F.  Co.,  78  Cal.  193.  196,  20  Pac.  Rep.  419,  s.  c.  97  Cal. 
263,  266,  32  Pac.  Rep.  172;  Willamette  S.  M.  L.  &  M.  Co.  v.  Kremer, 
94  Cal.  205,  207,  29  Pac.  Rep.  633;  Joost  v.  Sullivan,  111  Cal.  286,  293^ 
43  Pac.  Rep.  896;  Coss  v.  MacDonough,  111  Cal.  662,  667,  44  Pac! 
Rep.  325;  Booth  v.  Pendola,  88  Cal.  36,  41,  25  Pac.  Rep.  1101,  24 
Pac.  Rep.  714;  Morris  v.  Wilson,  97  Cal.  644,  645,  32  Pac.  Rep.  801; 
Marchant  v.  Hayes,  120  Cal.  137,  138,  49  Pac.  Rep.  840;  San  Francisco 
L.  Co.  v.  O'Neil,  120  Cal.  455,  456,  52  Pac.  Rep.  728;  West  Coast  L.  Co. 
v.  Knapp,  122  Cal.  79,  54  Pac.  Rep.  533,  534;  Laidlaw  v.  Marye,  133  Cal. 
170,  173,  65  Pac.  Rep.  391;  Bringham  v.  Knox,  127  Cal.  40,  59  Pac. 
Rep.  198.  But  see  Dunlop  v.  Kennedy  (Cal.),  34  Pac.  Rep.  92  (rehear- 
ing  granted,    and    decision    reversed). 

See  Kiessig  v.  Allspaugh,  91  Cal.  234,  236,  27  Pac.  Rep.  662.  13 
L.  R.  A.  418;  White  v.  Fresno  Nat.  Bank,  98  Cal.  166,  168,  32  Pac.  Rep. 
979;  Gnekow  v.  Confer  (Cal.),  48  Pac.  Rep.  331;  MclNIenomy  v. 
White,   115  Cal.   339,   342,   47  Pac.  Rep.   109;    Macomber  v.   Bigelow,   123 


§§  295, 296  mechanics'  liens.  230 

orandum  thereof,^-  must  be  filed  with  the  county  recorder; 
otherwise  the  contract  is  void.^^ 

The  contract  need  not  be  recorded,  under  the  California 
statute,  as  there  is  uo  provision  therein  for  recording  the 
same.  Nearly  every  opinion  of  the  California  courts  relating 
to  the  subject  states  that  the  contract  must  be  "  recorded," 
otherwise  it  is  void.  This  looseness  of  expression  is  entirely 
unwarranted,  as  the  statute  -*  expressly  provides  that  the 
contract  or  memorandum  shall  be  merely  "  filed  "  with  the 
recorder.^^ 

§  295.  The  duty  of  filing  the  contract  rests  upon  all  the 
parties  thereto,-'^  and  it  is  as  important  for  the  owner  as  for 
the  contractor  to  see  that  it  is  filed,  since,  on  failure  to  file, 
the  obligations  of  the  former  to  subclaimants  are  not  limited 
to  the  contract  price,  and  as  to  the  latter,  his  lien  is  lost.-^ 
But  the  duty  to  file  the  contract  is  primarily  on  the  con- 
tractor, for  the  reason  that  he  can  always  defeat  the  law 
and  the  owner's  interest  by  commencing  work  before  such 
filing,  the  owner  being  helpless  in  the  matter.^* 

§  296.  Necessity  and  object  of  filing  contract.  While  the 
filing  of  the  contract  is  for  notice,  yet  it  is  not  for  that  pur- 
pose merelj^;    it  is  one  of  the  essentials  to  a  valid  original 

Cal.  532,  56  Pac.  Rep.  449;  CaUfornia  I.  Const.  Co.  v.  Bradbury,  138 
Cal.  328,  71  Pac.  Rep.  346,  617;  Camp  v.  Behlow,  2  Cal.  App.  699,  700, 
84  Pac.  Rep.  251;  Stimson  M.  Co.  v.  Los  Angeles  T.  Co.,  141  Cal.  30, 
32,  V4  Pac.  Rep.  357;  Jones  v.  Kruse,  138  Cal.  613,  614,  72  Pac.  Rep. 
146    (prior   to   amendment   of    §  1187,    March    27,    1897). 

2»  Kerr's  Cyc.  Code  Civ.  Proc,  §  1183,  and  note;  Willamette  S.  M. 
L.  &  M.  Co.  V.  Los  Angeles  College  Co.,  94  Cal.  229,  233,  29  Pac.  Rep. 
629;    Joost  V.  Sullivan,  111  Cal.  286,   293,  43  Pac.  Rep.   896. 

See    "Memorandum,"    §§300-311,    post. 

23  See  "Effect  of  Non-compliance,'   §§315   et  seq.,   post. 

Colorado.  In  this  state,  those  performing  labor  or  furnisliing 
materials  before  the  contract  is  filed  will  have  a  lien,  independently 
of  the  contract:  Laws  1899,  §  1,  pp.  261,  262;  3  Mills's  Ann.  Stats., 
2d  ed.,   §   2867. 

"  Kerr's    Cyc.    Code    Civ.    Proc.,    §    1183. 

»  Colorado.  But,  as  to  this  state,  see  Laws  1899,  §  1,  pp.  261,  262; 
3   Mills's   Ann.   Stats.,   2d   ed.,    §  2867. 

=«  Giant  P.  Co.  v.  San  Diego  F.  Co.,  78  Cal.  193,  197,  20  Pac.  Rep. 
419;  Laidlaw  v.  Marye,.133  Cal.  170,   175,   65  Pac.   Rep.   391. 

='  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co.,  94  Cal. 
229,  233,  29  Pac.  Rep.  629.  See  §§81,  127,  130.  ante:  Laidlaw  v.  Marye, 
133  Cal.  170.  175,  65  Pac.  Rep.  391,  Los  Angeles  P.  B.  Co.  v.  Higgins 
(Cal.  App.,  Aug.  8,  1908),  7  Cal.  App.  Dec.  164. 

2»  Laidlaw  v.  Marye,   133  Cal.   170,   175,   65  Pac.  Rep.  391. 


11 


231  REQUIREMENTS   ESSENTIAL    TO    VALIDITY.  §  296 

statutory  contract.  By  the  express  provision  of  the  statute, 
a  failure  to  file  the  contract  renders  the  statutory  original 
contract  void.-" 

The  object  of  the  statute  in  requiring  contracts  of  an 
agreed  price  in  excess  of  one  thousand  dollars  to  be  filed 
seems  to  be  twofold :  1.  As  a  security  to  the  owner,  who 
is  thereby  shielded  from  liability  to  subcontractors,  con- 
tractors, laborers,  and  material-men,  beyond  his  contract 
price;  2.  To  afford  information  to  all  others  furnishing 
materials  or  performing  services  in  and  about  the  contem- 
plated improvement  upon  which  to  predicate  an  opinion, 
founded  upon  the  value  of  the  property,  the  price  to  be  paid, 
and  the  dates  of  payment,  as  to  whether  or  not  the  con- 
tract price  is  such  as  will  probably  be  adequate  security, 
together  with  the  lien  therefor  given  to  them  by  the  statute, 
sufficient  to  warrant  them  in  bestowing  their  labor  or  fur- 
nishing materials  for  the  proposed  improvement.  Mani- 
festly, if  the  improvement,  when  completed,  taken  with  the 
property  upon  which  it  is  situated,  is  of  a' character  having  no 
extrinsic  or  market  value,  as,  for  instance,  a  mill  for  crush- 
ing quartz-rock,  where  there  is  not,  and  cannot  be,  any 
quartz-rock  to  crush,  or  if  the  property  be  valueless,  and  the 
price  agreed  to  be  paid  be  far  below  the  value  of  the  work  to 
be  done,  it  is  of  the  utmost  importance  that  these  facts  shall 
be  known  to  those  about  to  become  interested. ^° 

A  further  object  of  filing  the  contract,  it  may  be  added, 
is  to  give  a  test  of  the  completion  of  the  contract  or  build- 

^  Kellogg-  V.  Howes,  81  Cal.  170,  179,  22  Pac.  Rep.  509,  6  L.  R.  A. 
588,  11  Pac.  Coast  L.  J.  589;  Butterworth  v.  Levy,  104  Cal.  506,  510,  38 
Pac.    Rep.    897. 

Contractual  re;ation.<«  of  parties  not  affected:  contractor  may  sue 
upon  the  contract,  but  cannot  claim  lien:  Los  Angeles  P.  B.  Co.  v. 
Higgins   (Cal.  App.,  Aug.   8,   1908),  7  Cal.  App.  Dec.   164. 

™  Substantially  in  the  laugruage  of  Greig  v.  Riordan,  99  Cal.  316. 
319,  33  Pac.  Rep.  913.  See  San  Francisco  L.  Co.  v.  O'Neil,  120  Cal. 
455,  457,  52  Pac.  Rep.  728.  in  which  the  court  say:  "While  the 
mechanic's-lien  law  certainly  interferes  to  a  great  extent  with  the 
right  of  the  property-owner  to  contract  according  to  his  own  best 
judgment  for  the  erection  of  improvements  thereon,  still  it  is 
apparent  that  the  property-owner  might  take  advantage  of  mechan- 
ics and  laborers  by  making  a  contract  with  a  contractor  financially 
irresponsible  for  the  construction  of  a  house  actually  worth  twice 
the   amount   of   the   named    contract    price." 

Colorado.  See  Chicago  L.  Co.  v.  Newcomb,  19  Colo.  App.  265,  74 
Pac.  Rep.  786,  790. 


§§  297-299  mechanics'  liens.  232 

ing,  so  that  claimants  may  know  when  to  file  their  claims 
of  lien.^^ 

§  297.  Whole  contract  must  be  filed.  Where  the  statu- 
tory original  contract  is  filed,  the  whole  of  it  must  be 
filed.^-  It  is  a  compliance  with  the  statute  if  the  contract  filed 
be  sufficient,  under  the  ordinary  rules  of  law,  to  constitute  a 
written  contract. ^^ 

§  298.     Same.  Reference  to  matters  dehors  the  contract  do 

not  necessarily  make  the  contract  void,  provided  it  is  not 
a  reference  to  another  writing.'*  Thus  a  reference  to  pat- 
terns, in  an  adjoining  house,  for  samples  of  the  work  to  be 
performed,  has  been  held  to  be  a  peculiarly  satisfactory  mode 
of  specification.^^ 

§  299.  Same.  Where  the  plans  and  specifications  are 
referred  to,  and  form  a  part  of  the  building  contract,  they 

==1  Barker  v.  Doherty,  97  Cal.  10,  12,  31  Pac.  Rep.  1117. 

See  "Time  of  Completion,"  *;§  334  et  seq.,  post,  and  "Filing  Claim," 
|§  416  et  seq.,  post. 

^-  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co.,  94  Cal. 
229,  234,  29  Pac.  Rep.  629;  Donnelly  v.  Adams,  127  Cal.  24,  25,  59  Pac. 
Rep.    208. 

See  California  I.  Const.  Co.  v.  Bradbury,  138  Cal.  328,  71  Pac.  Rep. 
346,    617. 

^  California  I.  Const.  Co.  v.  Bradbury,  138  Cal.  328,  331,  71  Pac. 
Rep.    346,    617. 

Executed  transiiaotion,  antecedent  to  the  contract  as  executed,  and 
forming  no  part  of  it,  although  referred  to  in  the  specifications:  See 
California  I.  Const.  Co.  v.  Bradbury,  138  Cal.  328,  330,  71  Pac.  Rep.  617. 

"■>  California  I.  Const.  Co.  v.  Bradbury,  138  Cal.  328,  331,  71  Pac. 
Rep.    346,    617. 

See  §  292,  ante. 

^  In  California  I.  Construction  Co,  v.  Bradbury,  138  Cal.  328,  331, 
71  Pac.  Rep.  346,  617,  the  court  say:  "Nor  do  we  think  the  objection 
tenable  that  the  old  house  thereby  became  part  of  the  contract,  and 
hence  that  the  whole  contract  was  not  filed  in  the  recorder's  office. 
All  written  contracts  refer  to  matters  dehors  the  instrument,  but 
such  matters  (except  where,  as  in  West  Coast  L.  Co.  v.  Knapp.  122 
Cal.  79,  54  Pac.  Rep.  533,  the  matter  referred  to  is  another  writing) 
do  not  become  a  part  of  the  instrument.  Thus  monuments  and 
natural  objects  called  for  In  a  deed  cannot  with  any  propriety  be 
said  to  be  part  of  the  deed;  nor  where  goods  are"  sold  or  contracted 
to  be  sold  by  sample  can  the  sample  be  said  to  be  part  of  the  contract, 
though  conformity  to  sample  doubtless  is.  Nor  is  the  case  different 
here,  where  work  is  contracted  to  be  done  according  to  a  specified 
pattern  or  sample." 


233  REQUIREMENTS   ESSENTIAL    TO    VALIDITY.  §  299 

must  be  filed  in  the  office  of  the  recorder  as  a  part  of  the 
contract.'''  The  rule  is  the  same,  where  the  plans  and  specifica- 
tions are  referred  to  as  being  in  the  office  of  the  architect ;  ^^ 
and  likewise  where  the  contract  simph'  refers  to  the  plans 
and  specifications.^^  The  fact  that  the  contract  does  not 
state,  in  terms,  that  the  plans,  drawings,  and  specifications 
were  annexed  to  it  and  made  a  part  of  it  is  no  excuse  for 
lack  of  filing,  where  they  constitute  an  essential  part  of  it.^® 
When  contract  refers  to  plans  and  specifications  as  signed 
by  the  parties,  and  they  are  not  so  signed,  the  statement 
is  a  misreference  or  misdescription  that  cannot  be  cured  by 
any  oral  waiver  or  oral  agreement.  The  plans  and  specifi- 
cations in  such  a  case  are  a  most  important  part  of  the 
contract,  for,  without  them,  the  nature  and  extent  of  the 
work  and  materials  to  be  furnished  cannot  be  ascertained, 
and  they  should,  under  such  circumstances,  be  made  a  part 

38  Holland  v.  Wilson,  76  Cal.  434,  436,  18  Pac.  Rep.  412;  Willamette 
S.  M.  L.  &  M.  Co.  V.  Los  Angeles  College  Co.,  94  Cal.  229,  233,  29  Pac. 
Rep.  629;  Yancy  v.  Morton,  94  Cal.  558,  562,  29  Pac.  Rep.  1111; 
Barker  v.  Doherty,  97  Cal.  10,  31  Pac.  Rep.  1117;  Sunimerton  v. 
Hansen,  117  Cal.  252,  253,  49  Pac.  Rep.  135;  Kuhlman  v.  Burns,  117 
Cal.   469,   49   Pac,   Rep,    585, 

See  "  Memorandum,"  §§  300  et  seq,,  post. 

"  Greig  v.  Riordan,  99  Cal.  316,  320,  33  Pac.  Rep,  913;  Pierce  v. 
Birkholm,  115  Cal.  667,  660.  47  Pac.  Rep.  681.  See  Donnelly  v.  Adams, 
115  Cal.  129,  130,  46  Pac.  Rep.  916.     See  §§  192,  292,  ante,  and  §  307,  post. 

See  also  White  v.  Fresno  Nat.  Bank,  98  Cal.  166,  168,  32  Pac.  Rep. 
979,  where  it  was  held  that  it  was  too  late  to  raise  the  question  for 
the  first  time  on  appeal,  no  demurrer  having  been  interposed,  the 
answer  admitting  the  contract  set  out  in  the  complaint,  and  the 
contract    itself    being    introduced    in    evidence    without    objection, 

3s  McMenomy  v.  White,  115  Cal,  339,  341,  47  Pac,  Rep.  109.  See 
authorities  in   foot-note   37,   ante. 

Filing;  copy  of  contract.  In  San  Francisco  L.  Co.  v.  O'Neil,  120  Cal. 
455,  456,  52  Pac.  Rep,  728,  it  was  held  that  §  1183  of  the  Code  of  Civil 
Procedure  makes  no  provision  for  the  filing  of  a  copy  of  the  contract, 
or  of  any  part  thereof,  and  the  court  say:  "It  is  the  established  law 
that  where  the  plans  and  specifications  are  part  of  the  contract,  they 
must  be  filed,"  The  contract  in  this  case  stated  that  the  contractor 
agreed  to  construct  a  certain  building  "  in  conformity  with  the  plans, 
drawings,  and  specifications  for  the  same  made  by  D,,  the  authorized 
architect,  .  .  .  which  are  signed  by  the  parties  hereto,  and  are  to  be 
kept  and  remain  in  the  office  of  said  architect,  ...  in  addition  to 
which  a  duplicate  copy  of  said  plans  and  specifications  is  to  be  filed 
in  the  county  recorder's  office."  The  question  whether  the  contract 
filed  would  have  been  sufficient  as  a  memorandum  was  not  decided. 

See   "Memorandum,"    §309,    post, 

""Pierce  v.  Eirkholm,  115  Cal.  657,  661,  47  Pac.  Rep,  681,  See 
Kuhlman  v.  Burns,   117   Cal.   469,   472,   49   Pac.   Rep.   585. 


§§300,301  mechanics'  LIENS.  234 

of  the  written  contract,  which  is  signed  by  the  parties  in 
such  a  way  that  no  resort  to  oral  evidence  is  necessary  to 
show  that  it  was  the  intention  of  the  parties  that  they  should 
be  a  part  of  such  contract ;  otherwise  the  contract  is  void.'*'^ 
In  order  that  there  may  be  a  sufficient  filing  of  the  con- 
tract, it  seems  that  no  part  of  it  can  be  a  copy ;  for  instance, 
a  copy  of  the  plans  and  specifications.  If  the  contract  is  filed, 
it  must  be  the  whole  original  contract.*^ 

§  300.  Memorandum  of  contract.  Statutory  provision. 
The  mechanic's-lien  law  *-  provides :  "  And  the  said  contract, 
or  a  memorandum  thereof,  setting  forth  the  [1]  names  of 
all  the  parties  to  the  contract,  [2]  a  description  of  the  prop- 
erty to  be  affected  thereby,  [3]  together  with  a  statement  of 
the  general  character  of  the  work  to  be  done,  [4]  the  total 
amount  to  be  paid  thereunder,  and  [5]  the  amounts  of  all 
partial  payments,  [6]  together  with  the  times  when  such 
pajnnents  shall  be  due  and  paj^able,  shall,  [7]  before  the 
work  is  commenced,  be  [8]  filed  in  the  office  of  the  county 
recorder  of  the  county,  or  city  and  county,  where  the  prop- 
erty is  situated,  who  shall  receive  one  dollar  for  such 
filing."  " 

§  301.  Same.  General  effect  of  provision.  In  1887,  the 
legislature  amended  this  section,  as  it  is  set  forth  in  the 
preceding  section,  by  providing  that  instead  of  filing  the 
contract  in  the  recorder's  office,  as  had  been  previously 
required,  a  memorandum  thereof  might  be  filed.  After  this 
amendment  was  made,  the  owner  or  contractor  could  satisfy 

«  DonneUy  v.  Adams,   127  Cal.   24,  25,   59  Pac.  Rep.   208. 

«  San  Francisco  L.  Co.  v.  O'Neil,  120  Cal.  455,  456,  52  Pac.  Rep.  728. 
In  that  case  the  question  of  whether  a  copy  of  the  contract  might 
be  treated  as  a  memorandum  was  not  involved,  and  was  not  decided. 
See  Blinn  L.  Co.  v.  Walker,  129  Cal.  62,  65,  61  Pac.  Rep.  664. 

See  foot-note  .38.  ante,  this  chapter. 

«  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1183. 

"  Before  aineinlnient  of  1SS7  to  this  section,  the  statute  impera- 
tively demanded  that  the  contract  should  be  filed.*  Joost  v.  Sullivan, 
111    Cal.    286,    294,    43    Pac.    Rep.    896. 

Orepron.  Under  act  or  1874.  w!iere  there  wa.s  no  written  con- 
tract, the  right  to  a  lie-n  attached  only  in  case  the  person  erecting  the 
building  refused  to  furnish  u  niemora!>dum  in  writing-  of  the  terms 
of  the  contract:  Tatum  v.  Cherry,  12  Oreg.   135,   6  Pac.  Rep.  715. 


235  REQUIREMENTS    ESSENTIAL    TO    VALIDITY.     §§  302-304 

the  statute  by  filing  eitlier  tiie  contract  or  such  memoran- 
dum; but  if  he  filed  the  contract,  he  must  still  file  the  whole 
of  it,  including  the  drawings  and  specifications,  if  they  were 
made  a  part  thereof;  while  if  he  preferred  to  file  the  memo- 
randum, such  memorandum  must  contain  the  matters  which 
are  prescribed  in  the  statute  as  the  equivalent  of  the  cou- 
tract.-** 

§  302.  Same,  Purpose  and  object.  It  is  apparent  that 
the  design  of  the  amendment  was  to  require  less  than  was 
required  before.  How  much  less,  must  be  determined  from 
the  language  used,  construed  in  the  light  of  the  purpose 
to  be  effected  by  the  filing  of  anything  giving  information 
of  the  contract  and  the  original  contractor.*^ 

The  objects  of  filing  the  memorandum  seem  to  be  the  same 
as  those  of  filing  the  contract.*** 

§  303.  Same.  What  not  required  in  memorandum.  AVhat 
the  statute  does  not  expressly  require  to  be  stated  in  the 
memorandum  need  not  be  stated  therein.  Thus  the  statute 
does  not  require  the  memorandum  to  be  signed ;  '*'^  nor  was  it 
necessary  that  the  signatures  to  the  plans  and  drawings 
should  be  copied  into  the  memorandum,  to  make  it  sufficient, 
the  drawings  and  specifications  being  signed  by  the  parties, 
as  appeared  by  the  recital  in  the  copy  of  the  articles  of 
agreement,  which  constituted  a  part  of  the  memorandum 
filed.*^ 

§  304.  Same.  Contract,  or  copy  thereof,  as  memorandum. 
General  principles.  The  claim  is  frequently  made  that  an 
insufficient  filing  of  a  contract  is  a  sufficient  filing  of  a 
memorandum  thereof.  It  is  evident  that  a  memorandum 
sufficient  under  the  statute  could  not  cure  a  contract  void 

*■'  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  CoUege  Co.,  94  Cal. 
229,   235,   29   Pac.   Rep.   629. 

«  Joost  V.  Sullivan,   111  Cal.   286,  295,  43  Pac.  Rep.   896. 

«  See   §  296,   ante. 

"  Blinn  L.  Co.  v.  Walker,  129  Cal.  62,  65,  61  Pac.  Rep.  664;  Joost  v. 
Sullivan.    Ill    Cal.    286,    294,    43   Pac.    Rep.    896. 

See  §  305,   post. 

"  Blinn  L.  Co.  v.  Walker,  129  Cal.  62,  66,  61  Pac.  Rep.  664. 


§  305  mechanics'  liens.  236 

for  non-compliance  therewith.*^  It  is  equally  clear  that  if 
the  original  contract  itself  is  filed,  and  it  is  insufficient  as 
such  contract  under  the  statute,  it  would  avail  nothing  as 
a  memorandum,  even  though  it  expressed  every  requirement 
of  the  statute  as  a  memorandum ;  for  the  statute  does  not 
demand  that  the  contract  and  memorandum  thereof  shall 
set  forth  the  same  facts  or  be  made  in  the  same  form.  If, 
however,  a  copy  of  the  original  contract,  or  what  purports 
to  be  a  copy  thereof,  is  filed,  and  the  same  is  sufficient  as  a 
memorandum,  containing  the  matters  and  in  the  form  set 
forth  in  the  statute,  and  there  exists,  independently  thereof, 
an  original  contract,  of  which  the  instrument  filed  purports 
to  be  a  copy,  whether  it  is  a  copy  or  not,  the  statute  is  satis- 
fied in  this  regard.  Where  there  was  nothing  in  the  memo- 
randum, except  the  style  of  the  writing,  to  indicate  that  it 
was  a  copy  of  anything,  its  language,  though  reading  like  a 
contract,  must  be  deemed  that  of  a  memorandum  or  state- 
ment of  the  substance  of  the  contract.^" 

§  305.     Same.    Names  of  all  the  parties  to  the  contract.  It 

is  not  necessary  that  the  memorandum  shall  be  signed  or  sub- 
scribed by  the  parties.  The  statute  only  requires  that  the 
memorandum  shall  "  set  forth  the  names  of  all  the  parties 
to  the  contract."  ^^ 

■"  In  this  connection,  Mr.  Justice  Harrison,  speaking  for  tlie  court, 
said:  "  W^li ether  the  document  which  was  filed  in  the  recorder's 
office  is  to  be  regarded  as  the  original  contract,  or  as  a  memorandum 
thereof,  is  immaterial.  A  memorandum  of  the  contract  can  have  no 
higher  force  than  the  contract  itself,  and  if  the  contract  fails  to 
comply  with  the  requirements  of  the  statute,  the  memorandum  itself 
must  be  equally  insufficient":  Willamette  S.  M.  L.  &  M.  Co.  v.  Los 
Angeles  College  Co.,  .94  Cal.  229,  235,  29  Pac.  Rep.  629.  It  is  sub- 
mitted that  this  language  is  not  quite  accurate,  and  that  the  text 
inore  correctly  states  the  law.  See  Greig  v.  Riordan,  99  Cal.  316.  320, 
33  Pac.  Rep.  913;  San  Francisco  L.  Co.  v.  O'Neil,  120  Cal.  455,  457,  52 
Pac.  Rep.  723;    Blinn  L.  Co.  v.  Walker,  129  Cal.  62,  66,  61  Pac.  Rep.  664. 

»»  Blinn  L.  Co.  v.  W^alker,  129  Cal.  62,  66,  61  Pac.  Rep.  664  (con- 
curring opinion).  "We  can  hardly  conceive  of  a  more  complete 
memorandum  of  a  contract  than  is  to  be  found  in  a  verbatim  copy  of 
it":  Blinn  L.  Co.  v.  Walker,  129  Cal.  62.  65,  61  Pac.  Rep.  664.  This 
dictum  is  not  in  consonance  with  the  authorities,  nor  in  accord  with 
the  requirements  as  to  the  memorandum,  which,  under  §  1183.  as 
already  shown  (§§  287,  288,  ante),  is  required  to  contain  matters  not 
required  by  the   statute   to  be  placed   in   the   contract. 

»'  .Joost  V.  Sullivan,  "111  Cal.  286,  294,  43  Pac.  Rep.  896;  Blinn  L. 
Co.   V.   Walker,   129   Cal.   62,   65,   61  Pac.  Rep.   664. 

See  §  303,  ante. 


237  REQUIREMENTS   ESSENTIAL    TO   VALIDITY.    §§  306,  307 

§  306.  Same.  Description  of  the  property  to  be  affected 
thereby.  The  statutory  provision  ^-  requires  the  memoran- 
dum to  contain  a  "  description  of  the  property  to  be  affected 
thereby."  Section  eleven  hundred  and  eighty-seven  ^^  requires 
the  claim  of  lien  to  contain  a  "  description  of  the  property  to 
be  charged,  sufficient  for  identification."  The  previous  dis- 
cussion of  the  latter  section  may  have  some  bearing  upon  the 
former.^*  At  any  rate,  where  the  description  contained  in 
the  memorandum  was  such  that,  by  the  instrument  itself,  and 
without  the  aid  of  oral  evidence,  the  building,  and  property 
on  Avhich  it  was  situated,  and  necessary  for  the  convenient 
use  of  sucii  building,  could  have  been  identified  on  the 
ground,  it  was  held  sufficient. °^ 

§  307.  Same.  Statement  of  the  general  character  of  the 
work  to  be  done.  The  statute  ^*^  requires  that  the  memoran- 
dum filed  shall  set  forth  the  names,  etc.,  "  together  with  a 
statement  of  the  general  character  of  the  work  to  be 
done."  ^'  If  the  statute  had  omitted  the  words  last  above 
quoted,  and  had  simply  said  that  the  contract,  or  a  memo- 
randum of  it,  should  be  filed,  it  would  have  been  under- 
stood that  the  word  "  memorandum,"  ex  vi  termini,  implied 

"  Kerr's  Cyc.   Code   Civ.  Proc,   §  1183. 

=3  Kerr's   Cye.   Code   Civ.  Proc,   §  1187. 

^*  See  "  Claim  of  Lien,"  §§   399  et  seq.,  post. 

^^  The  drawings  and  plans,  wliich  ^vere  part  o£  the  contract,  repre- 
sented tlie  liouse  as  facing  tlie  longer  way  on  A.  Street,  with  a 
veranda  the  entire  length  of  the  A.  Street  front;  one  end  of  the  house 
was  shown  to  front  on  H.  Street,  and  in  the  drawings  of  the  H.  Street 
front,  standing  in  H.  Street,  facing  tlie  house,  the  veranda  appeared 
to  the  left  of  the  drawing,  which  established  the  house  on  the  north 
side  of  A.  Street,  and  the  northwest  corner  of  H.  and  A.  streets;  the 
drawings  also  showing  where  the  house  was  located  witli  reference 
to  the  streets,  property  lines,  etc.:  Blinn  L.  Co.  v.  Walker,  129  Cal. 
62.   64,   65,   61   Pac.   Rep.   664. 

Where  the  memorandum  filed  erroneously  described  the  adjoinin; 
lot,  upon  which  certain  improvements  were  also  to  be  made,  as  run- 
ning "easterly,"  but  adjoining  a  lot  described  upon  which  a  build- 
ing was  to  be  erected,  and  which  was  described  in  the  contract  as 
running  "  westerly,"  the  error  does  not  destroy  the  sufficiency  of  the 
memorandum,  nor  avoid  the  contract,  being  capable  of  correction  by 
proper  averment  and  proof:  Dunlop  v.  Kennedy  (Cal.,  Aug.  31,  1893), 
34  Pac.  Rep.  92,  96  (rehearing  granted,  and  decision  of  commissioners 
reveFsed),  citing  Yancy   v.   Morton.   94  Cal.   558,   29  Pac.  Rep.   1111. 

«  Kerr's   Cyc.   Code   Civ.  Proc,    §  1184. 

*'  See,  generally)  §§  286  et  seq.,  antr?. 


§  308  mechanics'  liens.  238 

that  it  need  not  contain  a  full  and  particular  statement  of 
the  contract.^* 

§  308.     Same.    Statement  of  work.    General  principles.    It 

seems  that  if  the  description  of  the  general  character  of  the 
work  is  substantially  complete,  and  is  not  fraudulently 
made,  and  the  claimants  are  not  misled  or  deceived  because 
of  any  imperfection  in  it,  and  the  owner  acts  in  good  faith, 
it  is  sufficient.^^ 

The  memorandum  filed  should  show  the  dimensions  and 
character  of  the  work ;  '■'°  and  the  general  material  of  which 
the  building  is  to  be  constructed,  whether  of  wood,  brick,  or 
stone,  and  the  like ;  "^    and  the  size  and  shape  of  the  house.'^- 

The  statement  must  not  be  too  general,  however;  for 
instance,  simply  that  "  the  building  is  to  be  a  frame  build- 
ing." ®^  To  say  that  the  building  is  to  be  a  stone  building, 
or  a  brick  building,  or  a  frame  building,  entirely  fails,  in 

5s  Joost  V.  Sullivan,  111  Cal.  286,  294,  43  Pac.  Rep.  896.  in  which  it 
was  said:  "Webster  defines  it  thus:  '(Law.)  A  brief  note  in  writ- 
ing of  some  transaction,  or  an  outline  of  some  intended  Instrument: 
an  instrument  drawn  up  in  brief  and  compendious  form.'  .  .  .  The 
words  ■  general  character  '  do  not  mean  a  special,  particular,  minute, 
or  detailed  description  of  the  work  to  be  done.  The  adjective  'gen- 
eral,' as  defined  in  Webster's  Dictionary,  means:  '  1.  Relating  to  a 
genus  or  kind:  pertaining  to  a  whole  class  or  order;  belonging  to 
a  whole  rather  than  to  a  part;  ...  3.  Not  restrained  or  limited  to  a 
precise  or  detailed  import;  not  specific;  lax  in  signification';  and  of 
the  noun  'character'  he  gives,  as  applicable  here,  '9.  Account; 
description.'  The  definition  given  of  the  word  '  general,'  in  Black's 
Law  Dictionary,  so  far  as  pertinent,  is:  'Universal,  not  particular- 
ized; as  opposed  to  special.'  The  same  author  defines  the  word 
'character'  only  as  applied  to  individuals,  but  it  is  nevertheless  per- 
tinent here:  'The  aggregate  of  the  moral  qualities  which  belong  to 
and  distinguish  an  individual  person;  the  general  result  of  one's 
distinguishing  attributes.'  " 

«•  Joost  V.  Sullivan,  111  Cal.  286,  296,  43  Pac.  Rep.  896. 

«»  Greig  v.  Riordan,  99  Cal.  316,  320,  33  Pac.  Rep.  913. 

"  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co.,  94  Cal. 
229,  236,  29  Pac.  Rep.  629:  Greig  v.  Riordan.  99  Cal.  316.  320.  33  Pac. 
Rep.  913:  Pierce  v.  Birkholm,  115  Cal.  657,  661.  47  Pac.  Rep.  681; 
Butterworth  v.  Levy,  104  Cal.  506,  508,  38  Pac.  Rep.  897.  See  Joost 
V.    Sullivan,    111    Cal.    286.    295,    43    Pac.    Rep.    896. 

62  Pierce  v.  Birkholm,  115  Cal.  657,  661,  47  Pac.  Rep.  681.  See  But- 
terworth V.  Levy.  104  Cal.  506.  508.  38  Pac.  Rep.  897. 

As  to  purpose  for  vi-hicb  building:  is  intended,  see  Joost  v.  Sullivan, 
111   Cal.   286,   295,   43  Pac.   Rep.   896. 

<»  Blythe  v.  Torre  (Cal.,  Dec.  14,  1894),  38  Pac.  639.  A  rehear- 
ing was  granted  in  this  case,  but  it  was  dismissed  by  stipulation 
before  final  determination. 


239  REQUIREMENTS   ESSENTIAL    TO    VALIDITY.  §  309 

essentials,  to  give  that  notice  to  the  public  which  the  law 
contemplates.  By  consulting  the  memorandum,  it  would 
be  impossible  to  say  whether  the  building  is  to  be  a  dimin- 
utive cottage  or  a  large  public  caravansary,  or  whether  the 
contract  price  is  at  all  in  proportion  to  the  character  of  the 
building  to  be  erected."* 

§  309.  Same.  Reference  to  plans  and  specifications.  Where 
the  memorandum  is  filed  as  such,''^  or  where  the  contract  is 
attempted  to  be  filed,  and,  owing  to  its  insufficiency  as  the 
proper  filing  of  a  contract,  it  is  claimed  to  be  sufficient  as  the 
filing  of  a  memorandum,""  and  such  memorandum  of  contract 
so  filed  contains  a  reference  to  the  plans  and  specifications, 
and  where  they  form  an  essential  part  of  the  contract,  and 
where,  without  them,  the  contract  would  be  indefinite  and 
uncertain,  such  filing  does  not  comjjly  with  the  terms  of  sec- 
tion eleven  hundred  and  eighty-three."^ 

**  Blythe  v.  Torre,   supra. 

Where  the  niemoranduni  gave  the  siase  of  the  lot,  and  It  was  suf- 
ficient in  other  respects,  and  set  forth,  "that  a  contract  has  been 
entered  into  for  raising,  making-  alterations,  additions,  and  repairs  to 
the  two-story  frame-house  building'  to  be  used  for  tenements,  situate, 
etc.  [describing  the  lot];  .  .  .  that  tlie  following  is  a  statement  of 
the  general  character  of  the  work  to  be  done  under  said  contract,  to 
wit,  raising,  making  alterations,  additions,  and  repairs  to  a  two- 
story  frame  building  to  be  used  for  two  tenements,  situated  as  above 
stated,  and  prosecuted  under  the  direction  of  M.  J.  Welch,  architect," 
—  it  is  sufficient  in  this  respect:  Joost  v.  Sullivan,  111  Cal.  286,  295, 
43   Pac.   Rep.   896. 

"'^  Dunlop  V.  Kennedy,  102  Cal.  443,  445,  36  Pac.  Rep.  765;  Butter- 
Worth  V.  Levy,   104  Cal.   506,   508,   38  Pac.   Rep.   897. 

««  See  §§  294  et  seq.,  ante. 

"  Greig  v.  Riordan,  99  Cal.  316,   320,   33  Pac.  Rep.   913. 

See   "Preliminary   Statement,"    §208,   ante. 

Contract  providiu!;  that  building  is  to  be  erected  "  in  confonnitj 
with  the  plans,  dra>viuf;;M,  and  .specitications  for  the  same,  made  l)y 
Huerne  and  Everett,  the  architects  employed  by  tlie  owner,  and  which 
are  signed  by  the  parties  hereto,  and  are  to  be  kept  and  remain  in 
the  office  of  said  architects,  subject  to  the  inspection  of  the  j^arties 
hereto,  and  others  concerned  in  said  erection,"  and  containing  the 
further  provision,  that  "  the  specifications  and  drawings  are  in- 
tended to  co-operate,  so  that  any  work  exhibited  in  drawings,  and 
not  mentioned  in  specifications,  or  vice  versa,  is  to  be  done  as  though 
mentioned  in  both."  is  insuffic-ient;  and  the  same  cannot  be  treated, 
if  filed,  as  containing  a  sufficient  statement  of  the  general  character 
of  the  work  to  stand  as  a  memorandum:  Greig  v.  Riordan,  99  Cal. 
316,  320,  33  Pac.  Rep.  913. 

Where,  in  addition  to  such  statements,  the  contract  filed  provides 
that  the  contractor  is  to  erect  "a  two-story  dwelling-house  and 
shed,"  the  contract  filed  is  insufficient  as  a  memorandum:  Pierce  v. 
Birkliolm,   115  Cal.   657,   661,  47  Pac.  Rep.   681. 


§  309  mechanics'  liens.  240 

Where  memorandum  does  not  disclose  that  there  were 
any  plans  or  specifications,  and  it  otherwise  states  the  gen- 
eral character  of  the  work,  it  is  sufficient.^^ 

The  expression  in  a  memorandum,  "  drawings  hereto  an- 
nexed," is  to  be  construed  as  referring,  not  to  the  original 
contract,  of  which  it  is  a  memorandum,  but  to  the  memoran- 
dum itself;  and  where  the  drawings  and  specifications  are 
referred  to  as  signed  by  the  parties,  the  memorandum  will  be 
construed  to  assert  them  to  be  parts  of  itself,  and  as  stating 
nothing  concerning  the  mode  in  which  they  were  identified  in 
the  making  of  the  written  contract ;  and  if  a  defect,  it  is  one 
in  the  memorandum  only,  and  the  maxim.  Falsa  demonstratio 
non  nocet,  applies.®® 

When,  in  addition  to  such  statements,  the  attempted  contract  pro- 
vides that  "  the  drawings  and  specifications  are  liereto  annexed," 
Instead  of  stating,  as  in  the  foregoing  illustrations,  that  they  "  are 
in  the  office  of  the  architect,"  and  it  also  provides  that  the  "  building 
is  to  be  three  stories  high,"  but  does  not  set  forth  the  materials  of 
which  the  building  is  to  be  constructed,  or  any  item  from  which  its 
"  general  character  "  can  be  ascertained,  the  contract  filed  is  insuffi- 
cient as  a  memorandum:  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles 
College  Co.,  94  Cal.  229,   236,  29  Pac.  Rep.  629. 

Where  the  memorandum  states  the  general  character  of  the  work 
as  a  "  one-story  brick  building,  and  all  work  mentioned  in  the  speci- 
fications in  connection  therewith,  in  a  workmanlike  manner,  and  in 
conformity  with  the  plans,  drawings,  and  specifications  for  the  same 
made  by  tlie  construction  committee  of  said  company,"  etc.,  and  the 
plans,  drawings,  and  specifications  are  neither  set  out,  nor  filed  in 
the  recorder's  office,  and  there  is  no  other  attempt  to  state  either 
their  contents  or  character  in  the  memorandum,  it  is  insufficient: 
Wood  v.  Oakland  &  B.  R.  T.  Co.,  107  Cal.  500,  503,  40  Pac.  Rep.  806. 

«••*  Joost  V.  Sullivan,  111  Cal.  286,  294,  43  Pac.  Rep.  896  (although  the 
work,  according  to  the  memorandum,  as  shown  above,  was  to  be 
"prosecuted  under  the  direction  of  M.  J.  "Welch,  architect."  See  Reed 
v.  Norton,  90  Cal.  590,  601,  26  Pac.  Rep.  767,  27  Id.  426,  the  record  of 
which  shows  that  tlie  memorandum  referred  to  the  plans  and  specifi- 
cations, and  the  general  character  of  the  work  was  "to  build  a  two- 
story  frame  dwelling-house  on  said  lot,  resting  upon  a  brick  founda- 
tion and  cellar,  including  all  excavations  and  grading,  all  brick  and 
masonry  work,  lathing  and  plastering,  all  carpenter  and  joiner  work, 
doors,  windows  and  glazing,  all  hardware,  plumbing,  gas-fitting, 
and  trimming,  all  painting,  and  everything  called  for  and  in  accord- 
ance with  the  plans  and  specifications  prepared  by  H.  S.  Laird,  archi- 
tect." The  court  said  that  the  memorandum  did  not  specify  tliat  any 
plans  or  specifications  should  be  filed,  "nor  is  it  necessary  to  a 
proper  memorandum  that  they  should  be." 

«»  Blinn  L.  Co.  v.  Walker,  129  Cal.  62,  66,  61  Pac.  Rep.  664.  The 
court  say:  "The  case  is  not  directly  within  Donnelly  v.  Adams,  115 
Cal.  129,  46  Pac.  Rep.  916",  nor  the  case  of  West  Coast  L.  Co.  v.  Knapp, 
122  Cal.  79,  54  Pac.  Rep.  533.  These  cases 'hold,  substantially,  that  the 
contract  is  not  wholly  in  writing,   as  required  by  the  statute,  unless 


241  REQUIREMENTS   ESSENTIAL    TO    VALIDITY.    §§  310,  311 

§  310.  Same.  Reference  to  detail  drawings.  Enlarged 
detail  drawings,  prepared  during  the  course  of  construc- 
tion for  the  instruction  of  the  workmen,  which  do  not  add 
to  or  change  the  contracts,  specifications,  or  drawings  on 
file,  but  merely  show  to  the  eye  of  the  workmen  how  that 
which  is  called  for  in  the  contract  is  to  be  done,  need  not  be 
filed  with  the  memorandum,  even  if  made  a  part  of  the  same, 
nor  filed  at  all,  if  made  after  the  work  was  commenced. 
Reference  to  them  in  the  contract  is  unnecessary,  and  w^orks 
no  change  therein,  and  such  a  reference  is  not  to  the  signed 
plans  and  drawings  made  part  of  the  contract ;  but  the  phrase 
"  detail  drawings "  is  sufficiently  ambiguous  to  allow  an 
oral  explanation  of  the  architect  to  prove  that  it  refers 
to  such  an  amplification  of  the  drawings  constituting  part 
of  the  contract.  The  architect,  without  such  detail  draw- 
ings, could  stand  over  the  workmen  and  give  directions  to 
the  same  end.  Without  such  detail  drawings,  the  original 
contract  may  be  valid. ■^° 

§  311.  Same.  Payments.  The  mechanic's-lien  law  '^  re- 
quires that  the  memorandum  of  the  contract  shall  contain  a 
statement  of  "  the  total  amount  ''^  to  be  paid  thereunder,  and 
the  amounts  of  all  partial  payments,  together  with  the  times 
when  such  payments  shall  be  due  and  payable."  ^^ 

The  analogies  suggested  by  defective  statements  of  the 
statutory  requirements  as  to  statutory  original  contracts  with 
reference  to  payments  may  be  profitably  considered  in  this 
connection,  in  the  light  of  the  object  to  be  accomplished.^* 

the  plans  and  specifications  referred  to  are  identified  in  writing-  as 
part  of  the  contract.  The  memorandum  liere  asserts  notliing-  as  to 
the  mode  in  whicli  tliis  was  done  in  the  making  of  the  contract.  If  a 
defoct,  it  is  one  in  the  memorandum  only.  ;  .  .  The  specifications  are 
otherwise  sufllciently  identified;  they  are  attached  to  the  memoran- 
dum as  a  part  thereof." 

■"  Blinn  L.  Co.  v.  Walker,  129  Cal.  62,  67,  61  Pac.  Rep.  664  (concur- 
ring opinion). 

"  Kerr's  Cyo.  Code  Civ.  Proc,  §  1183. 

«  Snell  V.  Bradbury,  139  Cal.  379,  381,  382,  73  Pac.  Rep.  150. 

"  See  Neihaus  v.  :Morgan  (Cal..  June  2,  1896),  45  Pac.  Rep.  255,  256 
(no  point,  however,  seems  to  have  been  made  on  these  matters). 

"  See   S§  272   et  seq.,   ante.   and.   generally.   §§  286   et  seq.,   ante;   also 
Kerr'M  Cjc.  Code  Civ.  Proc,  §  1184,  and  note. 
Mech.   Liens  —  16 


§§312-314  mechanics'  LIENS.  242 

§  312.  Time  of  filing  contract  or  memorandum.  The 
statutory  t)riginal  eoiitraet,  or  a  proper  memoraiidum  thereof, 
must  be  filed  before  the  commencement  of  the  work;  other- 
wise the  contract  is  void.'^ 

The  general  rule,  heretofore  stated, '•*  as  to  requirements  not 
essential  to  the  validity  of  the  statutory  original  contract, 
seems  applicable ;  namely,  that  a  substantial  compliance  with 
this  provision  is  all  that  is  necessary,  provided  no  one  is 
injured  thereby,  and  there  is  no  evidence  of  bad  faith. '^^ 

§  313.     Place   of  filing   contract   or  memorandum.     The 

statute  '*  regulating  the  i)lace  of  filing  provides  that  the  con- 
tract or  the  memorandum  "  shall  ...  be  filed  in  the  office  of 
the  county  recorder  of  the  county,  or  city  and  county,  where 
the  property  is  situated."  No  express  provision  seems  to 
have  been  made  where  the  property  is  situated  in  two  coun- 
ties. On  the  other  hand,  the  requirement  of  the  statute  '"  in 
reference  to  the  filing  of  the  owner's  notice  of  completion 
of  the  building  and  the  claimant's  claim  of  lien  is,  that  the 
same  must  be  filed  with  or  in  the  office  of  the  recorder  of 
the  county,  or  city  and  county,  in  which  such  property,  or 
some  part  thereof,  is  situated.*" 

§  314.  Conspiracy  as  to  contract  price.  Under  the  stat- 
ute,*^ "  if  the  owner  and  his  contractor  shall  directly  or  in- 

■"•  Kerr's  Cyc.  Code  Civ.  Proo.,  §  1183,  and  note.  See  Willamette 
S.  M.  Co.  V.  Kremer,  94  Cal.  205,  207,  29  Pac.  Rep.  633. 

As  to  materials  furnished  before  filing  eontraet.  see  Giant  Powder 
Co.  V.  San  Diego  F.  Co.,  97  Cal.  263,  32  Pac.  Rep.  172. 

See  "Filing  Contract,"  §294,  and  see,  generally,  §§286  et  seq., 
ante. 

Colorado.  Laws  1893,  §  1,  p.  315,  seems  to  allow  the  filing  after  the 
commencement  of  the  work,  but  work  done  or  material  furnished  prior 
thereto  "  are  deemed  to  have  been  done  at  the  personal  instance  of  the 
owner." 

'«  §§  270  et  seq.,  ante. 

"  Thus  where  the  memorandum  of  contract  was  filed  on  a  certain 
day,  at  10:30  a.  m.,  and  the  work,  if  any  at  all,  commenced  before  t!  e 
filing  was  of  the  most  trifling  nature,  and  was  not  commenced,  at  the 
earliest,  until  8  or  8:30  a.  m.  of  the  same  day.  it  is  a  sufficient  filing 
before  the  work  was  commenced  :  Reed  v.  Norton,  90  Cal.  590,  600,  26 
Pac.  Rep.  767,  27  Id.  426. 

"  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1183. 

"   Kerr's  Cyc.  Code  Civ.  Proc.  §  1187. 

«"  See,  generally,   "Filing  Claim,"  §416, -post. 

"  Kerr's  Cyc.  Code  Civ,  Proc,  §  1202,  as  amended  March  18,   1885. 


243  REQUIREMENTS    ESSENTIAL    TO    VALIDITY.  §  314 

directly  conspire  to  or  agree  that  the  written  contract  filed 
shall  appear  to  show  the  contract  price  to  be  less  than  it 
really  is,  and  it  shall  accordingly  so  show,  then  such  contract 
shall  be  Avholly  void,  and  no  recovery  shall  be  had  thereon  by 
either  party  thereto,  and  in  such  case  the  labor  done  and 
materials  furnished  by  all  persons,  except  the  contractor, 
shall  be  deemed  to  have  been  done  and  furnished  at  the  per- 
sonal instance  of  the  owner,  and  they  shall  have  a  lien  for 
the  value  thereof."  *- 

Penalties  for  conspiracy.  It  is  to  be  observed  that  the 
conspiracy  mentioned  in  the  foregoing  provision  is  attended 
with  the  same  penalties  as  a  failure  to  comply  with  the 
provisions  of  section  eleven  hundred  and  eighty-three,*^  as  to 
statutory  original  contract.  It  is  evident  that  this  provision 
applies  only  to  the  statutory  original  contract ;  «*  and  the 
same  rules  of  construction  to  avoid  penalties,  it  seems,  would 
be  equally  applicable,  as  in  the  case  of  other  similar  penalties 
set  forth  in  the  statute. ^^ 

"=  See  Reed  v.  Norton,  99  Cal.  617.  618,  34  Pac.  Rep.  333;  California 
I.  Const.  Co.  V.  Bradbury,  138  Cal.  328,  334,  71  Pac.  Rep.  346,  617,  and 
dissenting-  opinion  of  Beatty,  C.  J. 

"^  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1183.  and  note. 

"^  See  "  Definition  of  Statutory  Original  Contract,"  §§  214.  259,  ante. 
And  see  Sidlinger  v.  Kerkow,  82  Cal.  42,  46,  22  Pac.  Rep.  932. 

''-  See   "Construction,"   §26,  ante. 


315  mechanics'  liens.  244 


CHAPTER  XVII. 

BUILDING  CONTRACTS   (CONTINUED). 

C.     Effect  of  Validity  or  Invalidity  of  Statutory  Original  Contract. 

§  315.     Effect  of  validity  of  contract.     Owner's  liability. 

§  316.     Same.     Valid  contract  as  notice. 

§  317.     Same.     Abandonment  of  contract. 

§  318.     Same.     How  far  subclaimants  are  bound  by  other  terms  of 

valid  original  contract. 
§  319.     Effect  of   invalidity  of    statutory  original    contract.      Gener- 
ally. 
§  320.     Same.     Classes  affected  by  invalidity  of  contract. 
§  321.     Same.     Effect  as  between  parties  to  the  contract. 
§  322.     Same.     Contractor's  lien  on  express  or  implied  contract. 
§  323.     Same.     To  what  extent  contract   may   be   looked   to  by   the 

parties. 
§  324.     Same.     Lien  claimants,  other  than  original  contractor. 
§  325.     Same.     How  far  effective. 

C.       EFFECT     OP     VALIDITY     OR     INVALIDITY     OF     STATUTORY 
ORIGINAL  CONTRACT. 

§  315.  Effect  of  validity  of  contract.  Owner's  liability.^ 
Where  there  is  a  valid  contract  between  the  owner  and  the 
contractor,  sneh  contract  is  the  absolute  measure  of  the 
owner's  liability ;  ^   and  where  there  is  such  a  valid  contract, 

1  Lien  as  limited  by  contract:  See  §§14,  33,  71,  28S,  ante;  "Lia- 
bility of  Owner,"  §§  523  et  seq.,  post. 

2  Hampton  v.  Christensen,  148  Cal.  729,  735,  84  Pac.  Rep.  200;  Stim- 
son  M.  Co.  V.  Braun,  136  Cal.  122,  124,  68  Pac.  Rep.  481,  89  Am.  St.  Rep. 
116,  57  L.  R.  A.  726;  McDonald  v.  Hayes,  132  Cal.  490,  64  Pac.  Rep.  850; 
Kellog-g-  V.  Howes,  81  Cal.  170,  175,  22  Pac.  Rep.  509. 

Owner's  liability  under  contract.  "  Wlien  an  owner  of  property  has 
contracted  with  another  to  erect  a  building  or  otlier  superstructure, 
or  do  any  other  work,  or  furnisli  materials  therefor,  all  subcontractors 
and  parties  ag'reeing  to  furnish  labor  or  materials  to  such  original 
contractor  do  so  with  reference  to  such  original  contract,  in  subordi- 
nation to  its  provisions  and  to  the  rights  of  the  respective  parties 
thereto,  so  far  as  they  relate  to  the  liability  of  the  owner  or  the 
property,  or  so  far  as  they  rely  on  such  liability;  and  any  agreement 
such  parties  may  make  with  such  original  contractor  is,  so  far  as 
relates  to  the  owner  or  the  property,  subject  to  all  the  terms,  agree- 
ments, conditions,  and  stipulations  of  such  original' contract;  and  the 
owner  or  the  property  cannot  be  held  liable  or  bound  to  any  extent 
beyond  the  terms  of  the  original  contract,  or  such  new  or  further 
contract  as  he  may  make  with  the  original  contractor  or  the  sub- 
contractors.    Any  other  rule'  would  place  the  owner  and  his  property 


245  EFFECT  OF  VALIDITY.  §  316 

under  which  the  work  is  done,  and  which  is  performed  bv 
the  owner,  all  that  the  statute  assumes  to  do,  and  in  fact 
all  that  can  be  done,  is  to  enable  the  subclaimants  to  cause 
the  contract  price  to  be  applied  to  the  payment  of  their  de- 
mands. All  that  has  been  held  upon  this  point  is,  that  it  is 
not  an  unreasonable  interference  with  the  right  of  the  owner ; 
that  whatever  contract  he  makes  shall  be  so  executed  and 
published  that  the  constitutional  policy  may  be  carried  out.^ 
Limitation  on  power  of  legislature.  The  legislature  can- 
not give  a  right  to  a  lien  to  an  extent  greater  than  the  con- 
tractual price,  under  a  valid  contract,  and  the  lien  is  limited 
by  the  terms  of  such  contract.* 

§  316.  Same.  Valid  contract  as  notice.  Knowledge  that 
there  is  a  contract  between  the  owner  and  the  contractor, 
where  the  claimant  is  a  subcontractor  under  the  contractor, 
is  sufficient  to  put  the  claimant  upon  inquiry,  and  he  is  to 
be  considered  as  affected  by  notice  of  the  eontents  and  stipu- 
lations of  the  contract  when  it  is  valid.^  And  of  the  existence 
of  the  valid  original  contract,  and  its  terms,  subordinate  lien 
claimants  are  presumed  to  have  knowledge,  and  to  have 
taken  subcontracts  and  furnished  labor  and  materials  in  sub- 
ordination thereto." 

completely  at  the  mercy  of  the  contractor;  would  give  the  contractor 
the  power,  without  any  authority  whatever,  to  make  contracts  bind- 
ing- the  owner  and  his  property.  There  is  nothing-  in  the  relation  of 
the  parties  which  can,  by  any  rule  of  law,  vest  in  the  contractor  any 
such  power"  :  Bowen  v.  Aubrey,   22  Cal.  566,  571    (1858). 

3  Gibbs  V.  Tally,  133  Cal.  373,  377,  65  Pac.  Rep.  970,  60  L.  R.  A.  815. 

*  Stimson  M.  Co.  v.  Braun,  136  Cal.  122,  125,  126,  68  Pac.  Rep.  481,  89 
Am.  St.  Rep.  116,  57  L.  R.  A.  726.  It  must  be  admitted  that  the  reason- 
ing- of  this  case,  carried  to  the  logical  conclusion,  could  enable  a  con- 
tractor and  owner  to  enter  into  a  contract  which  would  prevent  any 
mechanic's  lien  from  being  enforced  against  the  property.  The 
quotation  of  the  court  from  Gibbs  v.  Tally,  133  Cal.  373,  65  Pac.  Rep. 
970,  60  L.  R.  A.  815,  does  not  go  to  the  extent  apparently  claimed 
for  it  in  the  opinion.  The  former  case  goes  very  close  to  the  doctrine 
that  although  the  legislature  may  require  the  filing  of  a  statutory 
original  contract  as  a  condition  of  its  validity,  yet  it  cannot  interfere 
with  any  provision  of  the  contract,  which  may  contain  such  terms  as 
the  parties  may  see  fit  to  agree  to.  The  development  of  the  rule  laid 
laid  down  in  tliis  case  may  therefore  be  watched  with  interest. 

=  Bowen  v.  Aubrey,   22  Cal.  566,   571    (1858). 

«  Shaver  v.  Murdock,  36  Cal.  293,  298  (1862);  Henley  v.  Wadsworth, 
38  Cal.  356,  361  (1862);  Dingley  v.  Greene,  54  Cal.  333,  337;  Kellogg  v. 
Howes,  81  Cal.  170.  175,  6  L.  R.  A.  588.  11  Pac.  Coast  L.  J.  589;  Walsh 
V.  McMenomy,  74  Cal.  356,  359,  16  Pac.  Rep.  17.  See  Wilson  v.  Barnard, 
C7  Cal.  422,  423,  7  Pac.  Rep.  845. 


§§  317,  318  mechanics'  liexs.  246 

Subclaimants,  in  the  absence  of  fraud  or  misrepresentation 
by  the  owner,  are  conehisivelv  presumed  to  have  knowledge 
of  the  provisions  of  such  original  contract,  and  its  terms 
are  binding  upon  them,  with  reference  to  any  demand 
against  the  owner  or  his  property/ 

§  317.  Same.  Abandonment  of  contract.  The  statute  * 
provides  a  mode  in  which  the  owner  may  limit  his  liability; 
viz.,  by  causing  the  statutory  original  contract  to  be  filed  in 
the  recorder's  office ;  but  it  is  only  "  in  the  case  of  a  contract 
for  the  work  "  duly  filed  that  the  amount  of  the  lien  is  lim- 
ited by  the  contract  price,  where  the  contract  price  exceeds 
one  thousand  dollars,  and  such  limitation  remains  even 
though  the  contractor  "  shall  fail  to  perform  his  contract  in 
full,  or  shall  abandon  the  same  before  completion."  °  And  if 
the  statutory  original  contract  is  valid,  the  owner  cannot  be 
held  liable  beyond  the  cg^ract  price,  whether  the  contract 
is  performed  or  abandoned.^" 

§  318.  Same.  How  far  subclaimants  are  bound  by  other 
terms  of  valid  original  contract.  It  must  be  admitted,  at  the 
outset,  that  the  California  authorities  are  neither  clear,  logi- 
cal, nor  consistent  upon  this  point.  So  far  as  the  mere  extent 
of  liability  is  concerned,  there  is  no  faltering  decision  that, 
under  a  valid  contract,  the  price  agreed  is  the  limit  of  the 
owner's  responsibility  and  the  boundary  which  marks  the 
claim  against  his  land.  The  cases,  for  the  most  part,  have 
arisen  upon  completion  of  the  contract,  upon  abandonment 
of  the  same,  or  malperformauce  of  the  terms  thereof,  or  for 

Colorado.  Jensen  v.  Brown,  2  Colo.  694,  696:  Davis  v.  Mouat  L.  Co., 
2  Colo.  App.  381,  31  Pac.  Rep.  187;  Ditto  v.  Jackson,  3  Colo.  App.  281, 
33  Pac.  Rep.  81   (1889). 

'  Henley  v.  Wadsworth,  38  Cal.  356,  361  (1862).  See  Downing  v. 
Graves,   55   Cal.   544,   548. 

See  "Void  Contract,"  §§319  et  seq.,  post;  "Liability  of  Owner," 
§§  523  et  seq.,  post;    "  Rights  of  Subcontractors,"  §  71,  ante 

«  Kerr's  Cye.  Code  Civ.  Proc,  §  1183. 

»  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co.,  94  Cal. 
229,   237.    29   Pac.   Rep.   629. 

10  McDonald  v.  Hayes,  132  Cal.  490,  495,  64  Pac.  Rep.  850;  Greig  v. 
Riordan,  99  Cal.  316,  319,  33  Pac.  Rep.  913;  Johnson  v.  La  Grave,  102 
Cal.  324,  325,  36  Pac.  Rep.  651;  Stimson  v.  Dunham  Co.,  146  Cal.  281, 
79  Pac.   Rep.   968. 


247  EFFECT    OF    VALIDITY.  §  318 

delay  in  its  perforniance,  upon  wiiich  the  owner  may  recoup 
the  damages  for  failure  properly  to  perform  the  contract, 
except  as  against  the  final  payment  of  twenty-five  per  cent. 
But  there  are  many  other  provisions  of  a  valid  contract  be- 
sides the  mere  payment  of  the  contract  price,  or  so  much 
thereof  as  would  be  due  to  the  contractor  from  the  owner, 
after  deducting  such  counterclaims. 

Lumber  and  workmanship  below  contract  requirements. 
Where,  for  instance,  the  contractor  obligates  himself  to 
construct  with  first-class  lumber,  and  he  uses  second-class 
lumber,  in  what  sense  is  a  subclaimant  bound  by  the  pro- 
vision in  the  original  contract  requiring  the  use  of  first-class 
lumber  only?  Is  the  material-man  to  lose  his  lien  because 
he  has  knowledge  that  the  original  statutory  contract  on 
file,  of  which  he  is  bound  to  take  notice,  declares  that  only 
first-class  lumber  is  to  be  used  in  the  structure,  and  second- 
class  lumber  is  furnished  by  him  to  the  contractor  for  the 
building,  upon  the  latter's  order?  And  likewise  as  to  the 
work  performed  by  subcontractors  under  such  original  con- 
tract. It  has  been  held  that  the  w^ork  of  the  subcontractor 
must  comply  with  the  terms  of  such  original  contract,^^  and, 
more  recently,^^  that  the  material-man  and  subcontractor, 
under  such  circumstances,  in  the  absence  of  conspiracy  or 
fraud,  have  liens  upon  the  property,  and  this,  in  our  view,  is 
the  better  doctrine ;  for  the  same  rule  would  otherwise  apply 

"  Downing  v.  Graves,   55  Cal.  544,   549. 

Subcontractor  bound  by  contract  of  person  through  whom  he 
claims,  and  his  right  to  lien  is  measured  by  contractor's  right  under 
the  contract  :  Culmer  v.  Caine,  22  Utah  216,  61  Pac.  Rep.  1008.  See 
Van  Clief  v.  Van  Vechten,  130  N.  Y.  571. 

As  to  iiiateriaLs  and  liens  being-  such  as  contract  calls  for  to  entitle 
material-man  or  suljcontractor  to  a  lien,  see  Tabor  v.  Armstrong,  9 
Colo.  285,  12  Pac.  Rep.  157;  also  20  Am.  &  Eng.  Encyc.  of  L.,  2d  ed., 
pp.    362,    369. 

'^  See   S§  71,    103,   ante. 

Materials  must  be  suitable  for  the  purpose  for  wliich  furnished,  or 
there  will  be  no  right  to  a  lien:  Boynton  F.  Co.  v.  Gilbert,  87  Iowa  15, 
53  N.  W.  Rep.  1085;    Harlan  v.  Rand,  27  Pa.  St.   (3  Casey)   511. 

Materials  not  of  quality  required  to  be  used  in  particular  building, 
but  of  such  a  character  as  miglit  ordinarily  be  used  in  such  buildings, 
there  is  a  right  on  part  of  material-man  to  a  lien:  Odd  Fellows'  Hall 
V.  Masser,  24  Pa.  St.   (12  Harris)  507,  64  Am.  Dec.  675. 

L,ien  for  inferior  materials,  where  used  in  the  improvement  :  Odd 
Fellows'  Hall  v.  Masser,  supra:  Wisconsin  R.  P.  B.  Co.  v.  Hood,  67 
Minn.  329,  69  N.  \V.  Rep.  1091,  64  Am.  St.  Rep.  418. 


§  318  mechanics'  liens.  248 

to  all  subclaimants,  and  would  require  the  mere  laborer  of 
the  contractor  constantly  to  inspect  the  plans  and  specifica- 
tions and  the  provisions  of  the  contract  at  each  step  of  his 
work,  and  would  lead  to  a  reductio  ad  absurdum,  and  cause 
the  statute  to  become  a  snare,  if  not  an  absolute  impediment 
to  all  work  of  construction. 

Owner's  redress  for  failure  to  comply  with  terms.  But,  vet, 
the  owner  should  in  some  way  be  protected  against  the  non- 
compliance with  the  terms  of  such  contract,  and  he  is  so 
protected;  for  the  fund  to  which  such  liens  attach  may  be 
great  or  small,  in  accordance  with  the  counterclaims  which 
the  owner  may  assert,  owing  to  the  non-performance  or  mal- 
performance  of  the  original  contract.  If  the  contractor 
should  not  recover  on  the  contract  because  he  failed  to  per- 
form to  an  extent  justifying  the  court  in  refusing  any  .judg- 
ment for  any  amount  in  favor  of  the  contractor,  no  doubt 
his  subclaimants,  in  case  the  original  contract  were  valid, 
would  be  bound  by  such  failure  to  perform ;  and  if  the  con- 
tractor can  recover  nothing,  and  subclaimants  under  such 
valid  contract  should  find  the  fund  evaporated,  and  while 
their  liens  might  be  valid,  as  such,  there  would  be  nothing  to 
which  they  could  attach.  So  far,  perhaps,  the  authorities  go, 
except,  it  may  be,  the  recent  case  which  holds  that  the  final 
pa.yment  of  twenty-five  per  cent,  required  by  the  statute  in 
cases  of  statutory  original  contracts,  is  not  subject  to  deduc- 
tions for  malperformance,  if  not  for  non-performance.^^ 

"  The  decision  in  Hampton  v.  Cliristensen,  148  Cal.  729,  735,  84  Pac. 
Rep.  200,  does  not  fuUy  coincide  with  the  doctrine  of  the  text;  for  it 
holds  that,  as  to  the  final  payment  of  twenty-five  per  cent,  the  owner 
cannot  counterclaim  his  right  to  damages  for  omissions  or  failure  to 
carry  out  the  statutory  original  contract  (and  the  rule  laid  down  can 
apply  to  such  contract  only),  or  for  damages  for  delay,  until  sub- 
claimants  have  their  liens  first  satisfied.  This  is  based  upon  the 
alleged  policy  of  the  constitution  that  such  claimants  shall  have  a 
lien;  but  it  may  be  answered  :  1.  That  the  constitution  does  not  pro- 
vide for  the  liens  of  all  claimants  under  the  protection  of  the  statute: 
See  §  28,  ante;  2.  That  it  has  also  been  held  that  this  provision  of  the 
constitution  is  subordinate  to  other  provisions  of  the  same  instrument 
guaranteeing  the  right  to  possess  and  enjoy  proi)erty,  etc.:  See  §§  32 
et  seq.,  ante;  3.  That  it  is  contrary  to  Reed  v.  Norton,  90  Cal.  590, 
593,  602,  26  Pac.  Rep.  767,  27  Id.  426.  See  "  Abandonment,"  ■§§  358 
et  seq.,  post.  The  mere  fact  that  the  owner  can,  as  contended  in  the 
Hampton  case,  make  the  payment  upon  completion  of  the  structure 
sufficiently  large  to  enable  him  to  protect  himself  against  malfeasance 
or  nonfeasance  of  the  contractor  in  carrying  out  his  contract,  it  is  sub- 


249  EFFECT  OF  VALIDITY.  §  318 

If  the  valid  contract  is  not  entirely  broken  by  the  non- 
feasance or  malfeasance  of  the  contractor,  but  such  omissions 
or  breaches  of  contract  can  be  compensated  to  the  owner  in 
damages,"  there  may  be  some  fund  to  the  extent  of  which 
the  subclaimants  may  go  upon  the  property  as  security  for 
their  demands. 

mitted,  is  no  answer;  for,  in  the  first  place,  such  payment  may  not 
possibly  be  made  large  enough,  outside  of  the  final  payment  of  twenty- 
five  per  cent,  and  in  the  next  place,  it  would  require  the  owner  to 
make  certain  definite  provisions  in  his  contract,  which  would  be  as 
much  an  interference  with  his  right  to  contract  as  the  provision  of 
§  1184  of  the  Code  of  Civil  Procedure,  requiring  him  to  make  payment 
only  in  money,  which  was  held  unconstitutional:  Stimson  M.  Co.  v. 
Braun,  136  Cal.  122,  125,  126,  68  Pac.  Rep.  481,  89  Am.  St.  Rep.  116,  57 
L.   R.   A.    726. 

DeeiKiions  unsatisfactory.  The  decisions  in  these  matters  are  far 
from  being  in  a  satisfactory  condition.  If  the  effect  of  the  consti- 
tutional provision  (§  15,  art.  xx,  Henning's  General  Laws,  p.  civ),  as  to 
"mechanics,  material-men,  artisans,  and  laborers  of  every  class,"  is 
to  give  a  lien  to  such  persons,  wliy  should  they  not  have  a  lien  for 
the  full  value  of  their  materials  or  labor?  The  constitution  ex- 
pressly says  so.  Here  again  arises  the  question  as  to  whether  a  direct 
or  indirect  lien  is  given:  See  §§  10  et  seq.,  ante.  Under  the  constitu- 
tion, it  seems  that  no  indirect  lien  is  provided  for,  although  it  has  not 
been  so  expressly  decided. 

It  may  vrell  be  que.>«tioned  whether  the  provision  as  to  final  pay- 
ment, as  contended  in  the  Hampton  case  (148  Cal.  729,  735,  84  Pac. 
Rep.  200),  is  a  law  enacted  by  the  legislature  in  obedience  to  the  con- 
stitutional mandate  that  it  "shall  provide  by  law  for  the  speedy  and 
efficient  enforcement  of  such  liens":  for  the  provision,  it  seems,  can 
in  no  sense  be  said  to  be  a  law  relative  to  the  enforcement  of  the  lien, 
which  would  relate  rather  to  matters  of  procedure:  but,  on  the  con- 
trary, it  is  a  provision  predetermining  what  the  original  contract  in 
certain  cases  shall  contain. 

As  far  as  the  material-man  i.s  concerned,  upon  abandonment  the 
material  on  the  ground  belongs  to  the  owner,  under  §  1200  of  the 
Code  of  Civil  Procedure.  That  is  one  way  by  which  the  statute 
attempts  to  present  value  to  the  owner,  for  which,  upon  the  general 
theory  of  such  liens,  the  material-man  should  have  a  lien.  The  title 
to  such  material,  of  course,  would  ordinarily  be  in  the  contractor.  If 
the  laborer  performs  work  upon  the  structure,  the  value  has  gone  into 
the  owner's  building,  and  upon  the  same  theory  the  laborer  should 
have  a  lien.  But  if,  notwithstanding  the  furnishing  of  this  material 
or  the  performance  of  this  work,  the  contractor  absolutely  fails  to 
perform  his  contract  as  to  the  manner  and  mode  of  construction,  as, 
for  instance,  to  take  a  case  not  probable  in  practice,  but  possible  In 
conjecture,  the  contractor  should  build  a  bathhouse  when  he  should 
construct  a  large  hotel,  how  are  the  rights  of  the  various  parties  to 
be  adjusted?  Is  the  owner  to  pay  the  laborers  from  the  final  twenty- 
five  per  cent?  The  contractor  would  be  entitled  to  nothing.  The 
owner  has  something  he  does  not  want,  possibly  a  great  damage  to 
hi-  land  —  a  thing  which  lie  may  have  to  destroy  at  his  own  loss  and 
expense.  It  could  hardly  he  urged,  under  sucli  circumstances,  tliat 
the  material-man  or  laborer  nad  conferred  value  upon  the  owner. 

"  See    "  Performance."    Sg  334    ct    seq.,   post. 


§  319  mechanics'  liens.  250 

Substantial  compliance  with  contract.  While  not  entirely 
in  accord  with  the  decisions,  it  is  submitted  that  this  state- 
ment of  the  law  reconciles  apparently  conflicting  decisions, 
makes  the  statute  plain  and  comprehensive,  and  adequately 
renders  justice  to  all  concerned.  The  subclaimant  is,  to  the 
full  extent,  bound  by  the  valid  contract,  as  to  the  terms  of 
which  he  is  presumed  to  have  knowledge,  and  all  the  rights 
of  the  owner  are  preserved,  without  rendering  the  statute 
either  a  burden  or  an  absurdity.  The  subclaimant,  on  the 
other  hand,  does  not  lose  his  lien,  in  the  absence  of  fraud  or 
conspiracy,  by  failure  to  furnish  materials  or  perform  work 
in  accordance  with  the  terms  of  the  valid  original  contract, 
although  by  so  doing,  with  or  without  actual  knowledge  of 
the  terms  of  the  contract  on  file,  as  to  which  he  may  inform 
himself,  he  takes  the  risk  of  having  his  lien  drained  of  all 
value  by  consciously  or  unconsciously  aiding  the  contractor 
in  his  breach  of  the  original  contract. 

§  319.  Effect  of  invalidity  of  statutory  original  contract. 
Generally. ^■''  The  failure  to  file  a  legal  statutory  original 
contract,  or  a  sufficient  memorandum  thereof,  within  the 
proper  time,  as  required  by  the  statute, ^•'  renders  the  con- 
tract, according  to  the  language  of  section  eleven  hundred 
and  eighty-three,^^  wholly  void.^^  The  same  result,  according 
to  the  terms  of  the  statute,  flows  from  a  conspiracy  embodied 
in  the  statutory  original  contract  to  make  the  contract  price 
less  than  it  really  is.^** 

i»  Abandonment  of  void  contract,  rigrlits  of  subclainiants  in  fund:  See 

Stimson  M.  Co.  v.  Nolan  (Cal.  App..  June  19,  1907),  91  Pac.  Rep.  262; 
Berentz  v.  Belmont  O.  M.  Co.,  148  Cal.  577,  584,  84  Pac.  Rep.  47,  113 
Am.  St.  Rep.   308. 

See  "Abandonment,"  §§358  et  seq.,  post. 

"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1183. 

"  Id. 

18  Kerr's  Cyc.  Code  Civ.  Proc.,  §§  1183,  1202,  and  notes.  See  San 
Diego  L  Co.  V.  Wooldredg-e,  90  Cal.  574,  578,  27  Pac.  Rep.  431;  Willam- 
ette S  M  Co.  V.  Kremer,  94  Cal.  205,  207,  29  Pac.  Rep.  633;  Willam- 
ette S.'  M.  L.  &  M.  Co.  V.  Los  Angeles  CoUege  Co.,  94  Cal.  229,  233,  29 
Pac  Rep.  629;  Giant  Powder  Co.  v.  San  Diego  F.  Co..  76  Cal.  193,  197, 
20  Pac  Rep.  419,  s.  c.  97  Cal.  263,  264,  32  Pac.  Rep.  172;  Barker  v. 
Doherty,  97  Cal.  10,  31  Pac.  Rep.  1117;  Booth  v.  Pendola,  88  Cal.  36,  41, 
25  Pac.  Rep.  1101,  24  Pac.  Rep.  714;  Schallert-Ganahl  L.  Co.  v.  iSTeal,  90 
Cal.  213,  214,  27  Pac.  Rep.  743;  Smith  v.  Bradbury,  148  Cal.  41,  82  Pac. 
Rep.  367,  113  Am.  St.  Rep."  189. 

"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1202. 


251  EFFECT   OF   VALIDITY,  §§  320,  321 

§  320.  Same.  Classes  affected  by  invalidity  of  contract. 
Three  classes  of  persons  are  affected  by  the  invalidity  of 
the  statutory  original  contract:  1.  The  owner;  2.  The  original 
contractor;  and  3.  Material-men,  subcontractors,  artisans, 
laborers,  and  other  persons  given  liens  under  the  statute. '° 
It  was  formerly  held  that  when  such  a  contract  is  "  wholly 
void,"  it  is  void  as  to  everybody  whose  rights  would  be 
affected  by  it  if  valid,^^  and  that  there  is  neither  an  "original 
contract  "  nor  an  "  original  contractor."  --  These  rules  have 
been  modified  with  reference  to  the  first  and  second  classes 
above  mentioned,  as  will  be  hereafter  more  fully  discussed.-^ 

§  321.     Same.    Effect  as  between  parties  to  the  contract. 

As  between  the  parties  to  such  a  void  statutory  original 
contract,  while  it  was  formerly  held  that  it  was  void  for 
every  purpose,  as  if  no  contract  had  been  made,-*  this  doc- 
trine has  been  considerably  modified. 

The  evident  intent  of  the  statute  was  to  make  it  an  object 
for  both  the  contractor  and  owner  to  put  in  writing  and 
record  their  building  contract,  where  the  amount  agreed  to 
be  paid  is  in  excess  of  one  thousand  dollars.  The  penalty 
which  attaches  to  the  owner  for  failure  to  do  so  is,  that  he 
may  be  held  liable  for  the  value  of  all  labor  done  and  ma- 
terials furnished  by  all  persons  other  than  the  contractor, 
without  reference  to  the  contract  price.-^  The  contractor 
suffers  the  penalty,  on  a  like  failure,  of  being  excepted  from 
the  class  of  persons  who  may  take  liens  under  the  law.-** 

^  Laidlaw  v.  Marye,  133  Cal.  170,  172,  62  Pac.  Rep.  391. 

"  Kellogg  V.  Howes,  81  Cal.  170,  178,  22  Pac.  Rep.  509,  6  L.  R.  A.  588. 
11  Pac.  Coast  L.  J.  589,  explaining  Giant  Powder  Co.  v.  San  Diego  F. 
Co.,  78  Cal.  193,  20  Pac.  Rep.  419  (as  to  the  "contract  remaining  to 
mark  the  extent  of  the  recovery  of  lien-holders,"  etc.). 

"  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co.,  94  Cal. 
229,  237,  29  Pac.  Rep.  629;  Rebman  v.  San  Gabriel  V.  L.  &  W.  Co.,  95 
Cal.  390,   395,   30  Pac.  Rep.   564. 

See   "  Original   Contractor,"   §  52,   ante. 

^  See  §§  321  et  seq.,  post. 

"  Kellogg  V.  Howes,  81  Cal.  170,  178,  22  Pac.  Rep.  509,  6  L.  R.  A.  588, 
11  Pac.  Coast  L.  J.  589;  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles 
College  Co.,  94  Cal.  229,  236,  29  Pac.  Rep.  629;  Davis  v.  MacDonough, 
109  Cal.  547,  549,  42  Pac.  Rep.  450. 

But  see  "Evidence."  §§  S07,  808,  post. 

^  Morris  v.  Wilson,  97  Cal.  644,  645,  32  Pac.  Rep.  801;  Stimson  M. 
Co.  V.  Nolan   (Cal.  App..  June  19.   1907),  91   Pac.  Rep.   262. 

="  IMorris  v.  Wilson.  97  Cal.  644,  645,  32  Pac.  Rep.  801;  McClain  v. 
Hutton,  131  Cal.  132,  142,  61  Pac.  Rep.  273,  s.  c.  63  Pac.  Rep.  182,  622. 


§§322,323  MECiiAxics'  LIENS.  252 

Void  contract  cannot  be  basis  of  recovery  by  the  contrac- 
tor against  the  owner ;  nor  can  it  be  looked  to  for  the  purpose 
of  determining  when  any  payment  is  to  be  made."  Neither 
can  it  be  the  basis  of  a  recovery  by  the  contractor  against 
the  owner  for  damages  thereunder,  as  for  not  being  allowed 
to  complete  the  building ;  -^  nor  by  the  owner  against  the 
contractor,  as  for  not  completing  the  building  in  time ;  -^  nor 
as  a  foundation  of  the  right  to  complete  the  building  accord- 
ing to  its  terms.^° 

§  322.  Same.  Contractor's  lien  on  express  or  implied  con- 
tract. The  failure  to  file  such  contract  or  memorandum, 
as  before  stated,  deprives  the  contractor  of  his  lien,  and  also 
6f  his  remedies  on  the  express  contract,  but  he  does  not, 
by  such  means,  acquire  any  greater  right  to  a  recovery  for 
his  labor  and  materials  than  he  would  have  had  if  he  had 
brought  the  action  irrespective  of  his  right  to  a  lien.^^  Nor 
can  the  contractor,  under  such  circumstances,  tile  a  claim  of 
lien  upon  the  implied  contract  for  the  demand  upon  which 
a  recovery  could  be  had  on  the  original  contract  if  valid. ^^ 

§  323.  Same.  To  what  extent  contract  may  be  looked  to 
by  the  parties.  The  statutory  original  contract,  although 
void,  may  be  looked  to  for  the  purpose  of  determining  what 
should  be  treated  as  a  part  of  the  building.^^  It  constitutes 
the  measure  and  test  of  recovery  by  the  contractor  upon 
the  implied  contract,^*  and  though  it  cannot  be  the  basis  of 

2'  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co., 
229,  236,  29  Pac.  Rep.  629;  Rebman  v.  San  Gabriel  V.  L.  &  W. 
Cal.  390,  395,  30  Pac.  Rep.  564. 

-■*  Palmer  v.  White,  70  Cal.  220,  221,  11  Pac.  Rep.  647. 

=»  Rel  man  v.   San  Gabriel  V.  L.  &  W.  Co.,   95  Cal.   390,   396, 
Rep.  564;    Holland  v.  Wilson,  76  Cal.  434,  18  Pac.  Rep.  412. 

3»  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co., 
229,  240,  29  Pac.  Rep.  629;  Rebman  v.  San  Gabriel  V.  L.  &  W. 
Cal.  390,  396,  30  Pac.  Rep.   564. 

31  Marchant  v.  Hayes,  117  Cal.  669,  671,  49  Pac.  Rep.  840. 

32  Morris  v.  W"ilson,  97  Cal.  644,  646,  32  Pac.  Rep.  801. 

33  Macomber  v.  Bigelow,  126  Cal.  9,  12,  58  Pac.  Rep.  312. 

3»  Camp  V.  Behlow,  2  Cal.  App.  699,  701,  84  Pac.  Rep.  251.  The  lan- 
guage of  this  decision,  that  the  "  contract  is  not  void  between  the 
parties,"  and  the  fact  that  the  contract  was  not  filed  is  immaterial, 
where  no  lien  is  involved,  seems  to  show  a  misconception  of  the 
decision   in  Laidlaw  v.  Marye,   133   Cal.   170,    173,   65  Pac.   Rep.   391.     If 


94 

Cal. 

Co 

.,   95 

30 

Pac. 

94 

Cal. 

Co 

i..  95 

253  EFFECT    OF   VALIDITY.  §  323 

a  recovery  by  the  contractor,  upon  implied  assumpsit,  with- 
out attempting  to  enforce  a  lien,  the  measure  of  his  recovery 
must,  in  any  event,  be  limited  by  the  contract  price,  and  he 
must  show  a  substantial  compliance  with  its  terms  to  Avar- 
rant  any  such  recovery  at  all.^^ 

the  contract  were  not  void  between  the  parties,  a  recovery  could  be 
had  upon  the  express  contract.  AH  that  the  Laidlaw  case  holds  is, 
that  the  void  contract  may  be  looked  to  as  evidence  to  determine  the 
outside  limit  of  the  owner's  liability  on  the  implied  contract,  and 
whether  a  benefit  has  been  conferred  at  the  request  of  the  owner  as 
evidenced  by  such  void  contract,  upon  which  to  base  an  action  on  the 
implied  contract,  under  the  general  principles  of  law;  in  other  words, 
the  void  contract  survives,  not  as  a  contract,  but  merely  as  evidence 
of  another  contract  for  certain  purposes,  between  the  parties. 

'=  Laidlaw  v.  Marye,  133  Cal.  170,  176,  65  Pac.  Rep.  391,  in  which  it 
is  said:  "We  thinlt  further,  that  the  error  arose  in  Rebman  v.  San 
Gabriel  V.  L.  &  W.  Co.,  95  Cal.  390,  30  Pac.  Rep.  564,  by  misapplication 
to  orig-inal  contractors  of  language  directed  solely  to  the  case  of 
subcontractors,  material-men,  artisans,  and  laborers.  Heretofore,  as 
will  subsequently  be  pointed  out,  the  court,  by  the  logic  of  necessity, 
if  from  no  other  consideration,  has  felt  compelled  to  modify  the  force 
of  the  Rebman  decision,  but  it  is  certainly  preferable  that  it  sliould 
at  once  be  overruled,  if  it  be  untenable,  rather  than  that  it  should  be 
undermined  and  eaten  away  after  a  long  course  of  vexatious  and 
expensive  litigation,  tilling  the  books  with  discriminated  cases,  all 
receding  further  and  further  from,  and  growing  more  and  more  dis- 
similar to,  the  parent  case.  When  the  statute  declares  that  the  con-, 
tract  shall  be  wholly  void,  it  means,  as  Willamette  S.  M.  L.  &  M.  Co.  v. 
Los  Angeles  College  Co.,  94  Cal.  229,  230,  29  Pac.  Rep.  629,  decided,  that 
it  is  wholly  void  as  to  the  third  class  above  designated,  who  there 
upon  become  entitled  to  liens  for  the  full  value  of  their  material  and 
service,  and  are  deemed  to  have  furnished  them  to  the  owner  at  his 
special  request.  By  thus  allowing  full  compensation  to  this  class,  the 
owner  is  sufficiently  punished  for  any  remissness  on  his  part,  while, 
with  like  measure,  the  original  contractor  is  penalized  by  losing  his 
lien.  But  the  law  never  meant  to  reward  the  contractor  for  his  dis- 
obedience, by  conferring  upon  him,  for  its  violation,  greater  rights 
than  would  have  been  his  had  he  obeyed  it.  Therefore,  as  between 
him  and  the  owner,  the  contract  must  remain,  not  the  basis  of  his 
recovery,  but  the  measure  and  test  of  his  right  to  recover.  He  must 
still  show  a  substantial  compliance  with  its  terms,  to  warrant  any 
recovery  at  all,  and  the  measure  of  his  recovery,  even  under  implied 
assumpsit,  must  be  limited,  as  to  him,  by  the  contract  price.  Thus 
only  is  the  law  given  a  just  and  harmonious  operation.  In  Barker  v. 
Doherty.  97  Cal.  10.  31  Pac.  Rep.  1117,  the  cases  of  Kellogg  v.  Howes! 
81  Cal.  170,  22  Pac.  Rep.  509,  and  Willamette  S.  M.  L.  &  M.  Co.  v.  Los 
Angeles  College  Co.,  94  Cal.  230,  29  Pac.  Rep.  629,  were  the  subject  of 
review,  and  it  is  said:  'Those  cases  decided  that  the  contract  was 
void  as  forming  the  basis  of  a  recovery,  and  no  legal  liability  could  be 
created  by  any  of  its  provisions.  This  would  seem  to  be  apparent 
from  a  cursory  reading  of  the  provision  itself.  It  was  never  intended 
to  hold,  in  those  cases,  that  the  writing  could  not  be  used  as  evidence 
to  determine  the  character  of  the  building  to  be  erected,  and  thereby 
to  furnisli  the  test  by  which  it  could  be  known  when  the  building  was 
completed.     Such  is  evident  from  the  fact  that  in  those  cases  the  test 


§  324  mechanics'  liens.  254 

§  324.  Same.  Lien  claimants,  other  than  original  con- 
tractor. Sections  eleven  hundred  and  eighty-three  and 
twelve  hundred  and  two  ^'^  provide  that  when  the  statutory 
original  contract  is  void  "  the  labor  done  and  materials  fur- 
nished by  all  persons  aforesaid,  except  the  contractor,  shall 
be  deemed  to  have  been  done  and  furnished  at  the  personal 
instance  of  the  owner,  and  they  shall  have  a  lien  for  the 
value  thereof."  This  simply  preserves  the  right  of  claimants 
under  the  original  contractor  to  a  lien  when  the  original 
contract  is  void  for  the  statutory  reasons,^^  but  does  not 
give  a  right  of  personal  judgment  against  the  owner,  when 
no  privity  exists,  and  then  the  lien  of  subclaimants  is  not 
limited  by  the  amount  due  the  contractor  from  the  owner.^^ 

Where  there  is  no  contractual  relation  between  the  owner 
and  the  claimant,  the  statute,  in  order  to  effectuate  the  lien  in 
the  contingencies  mentioned,  in  deeming  that  the  labor  is  per- 
formed or  the  material  is  furnished  at  the  personal  instance 
of  the  owner,  does  so  simply  for  the  purpose  of  the  liens, 
and  the  statute  creates,  by  its  own  force  and  vigor,  such  a 
relation  for  a  specific  purpose,  namely,  to  uphold  the  liens. 
In  such  case,  the  statute  does  not,  however,  create,  or 
attempt  to  create,  a  contractual  relation  or  privity  between 
the  owner  and  the  claimants  upon  which  a  personal  action 
wnll  lie.^^  This  liability  of  the  owner  for  the  amount  of  liens 
above  the  contract  price  is  a  statutory  liability,  and  not  by 

of  completion  of  the  buildings  was  furnished  by  an  inspection  of  the 
very  contracts  which  were  held  to  be  "  wholly  void."  Any  other  inter- 
pretation of  this  provision  of  the  statute  would  lead  to  inextricable 
confusion,  and  practically  nullify  the  entire  section.'"  And  see  Sulli- 
van V.  California  R.  Co.,  142  Cal.  201,  203,  204.  75  Pac.  Rep.  767:  Camp 
V.  Behlow,  2  Cal.  App.  699,  84  Pac.  Rep.  251,  holding  that  Kuhlman  v. 
Burns,  117  Cal.  469,  49  Pac.  Rep.  585,  is  no  longer  the  law,  as  it  was 
overruled  by  Laidlaw  v.  Marye,  133  Cal.  170,  65  Pac.  Rep.  391. 

See  also  note  34,  this  section. 

36  Kerr's  Cyc.  Code  Civ.  Proc,  §§  1183,  1202. 

"  Southern  Cal.  L.  Co.  v.  Schmitt,  74  Cal.  625,  627,  16  Pac.  Rep.  516; 
McMenomy  v.  White,  115  Cal.  339,  47  Pac.  Rep.  109;  First  Nat.  Bank 
V.  Perris  Irr.  Dist.,  107  Cal.  55,  65,  40  Pac.  Rep.  45;  Madera  F.  &  T.  Co. 
V.  Kendall,  120  Cal.  182,  184,  52  Pac.  Rep.  304,  65  Am.  St.  Rep.  177. 

3s  San  Francisco  L.  Co.  v.  O'Neil,  120  Cal.  455,  456,  52  Pac.  Rep.   728. 

39  Gnekow  v.  Confer  (Cal.,  March  31,  1897),  48  Pac.  Rep.  331.  Se<; 
Kellogg  V.  Howes,  81  Cal.  170,  179,  22  Pac.  Rep.  509,  6  L.  R.  A.  588.  11 
Pac.  Coast  L.  J.  589;  San  Francisco  L.  Co.  v.  O'Neil,  120  Cal.  455,  456.  52 
Pac.  Rep.  728. 


255  EFFECT  OF  VALIDITY.  §  324 

virtue  of  the  contract  with  the  contractor.*"  And  where  the 
contract  is  void,  the  statute,  and  not  the  contract,  measures 
the  extent  of  the  recovery  on  liens,  and  there  is  no  contract 
of  which  the  subcontractor  is  bound  to  take  notice,  and 
his  knowledge  that  a  contract  was  attempted  to  be  made, 
but  was  not,  cannot  affect  his  rights.*^  And  in  any  action 
against  the  owner  by  subclaimants,  their  rights  are  to  be 
determined  by  other  rules,  and  irrespective  of  any  provision 
of  such  contract.*-  There  being  no  contract,  it  would  follow, 
even  though  the  statute  had  not  said  so,  that  the  owner 
himself  is  building  the  structure,  and  in  that  case  the  so- 
called  contractor  is  (as  to  other  lienors)  but  the  statutory 
agent  of  the  owner. *^ 

By  the  failure  to  file  such  contract,  subclaimants  have 
no  means  of  knowing  whether  the  contract  is  in  writing  or 
not,  or  whether  it  is  for  more  or  less  than  one  thousand 
dollars.**  They  have  no  notice  of  payments  to  be  made,  or 
when  they  will  fall  due,  or  at  what  time  they  are  required 
to  give  the  owner  notice.  As  a  penalty  for  not  affording 
them  this  means  of  knowledge  by  filing  such  contract  as  is 
required  by  the  statute,  the  owner  is  deemed  to  have  con- 
tracted for  the  material,  so  far  as  the  right  of  lien  is  con- 
cerned, and  his  property  is  bound  for  the  value  of  such 
material.*^' 

Lien  claimants  must  follow^  statute.  But  the  subclaimants, 
if  they  desire  to  enforce  the  lien  upon  the  property,  must 
follow  those  provisions  of  the  statute  which  are  prescribed 
for  preserving  the  lien  when  the  claimant  has  in  fact  per- 
formed his  labor  or  furnished  his  materials  at  the  personal 
instance  of  the  owner ;  *"  and  a  lien  can  be  had  for  labor  or 

*"  Boas  V.  Maloney,  138  Cal.  105,  107,  70  Pac.  Rep.  1004. 

"  Kellogg  V.  Howes,  81  Cal.  170,  179,  22  Pac.  Rep.  509,  6  L.  R.  A.  588, 
11  Pac.  Coast  L.  J.  589. 

«  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co.,  94  Cal. 
229,  236,  29  Pac.  Rep.  629. 

"  Gibbs  V.  Tally,  133  Cal.  373,  377,  65  Pac.  Rep.  970.  60  L.  R.  A.  815. 

"  Berentz  v.  Belmont  O.  M.  Co.,  148  Cal.  577,  584,  84  Pac.  Rep.  47,  113 
Am.  St.  Rep.  308. 

^=  Davies-Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641,  645,  22  Pac. 
Rep.  860. 

''•  Davis  V.  MacDonough,  109  Cal.  547,  549,  42  Pac.  Rep.  450;  Southern 
Cal.  L.  Co.  vJ  Schmitt,  74  Cal.  625,  627,  16  Pac.  Rep.  516. 


§  325  mechanics'  liens.  256 

materials  furnished  before  the   filing  of   a  void  statutory 
original  contract.^^ 

§  325.  Same.  How  far  effective.  While  it  has  been  said 
that  a  void  statutory  original  contract  is  absolutely  void 
as  against  lien  claimants  other  than  the  contractor,^*  yet  the 
contract  may  be  looked  to  by  claimants  other  than  the  con- 
tractor to  determine  the  character  of  the  building  to  be 
erected,  and  thereby  to  furnish  a  test  by  which  it  can  be 
known  when  the  building  is  completed.*®  And  although  the 
contract  may  be  void,  a  bond  guaranteeing  performance  of 
all  the  conditions  of  the  contract,  and  that  the  house  to  be 
constructed  by  the  contractor  should  be  delivered  free  from 
all  liens  that  might  arise  from  and  be  filed  against  the  build- 
ing on  account  of  material  or  labor  furnished  to  the  contrac- 
tor and  used  in  or  about  the  structure,  is  valid,  and  binding 
upon  the  sureties.^*' 

The  material-man  is  not  estopped  from  claiming  that  the 
contract  is  void  from  the  fact  that  he  has  contracted  to 
furnish  the  lumber  and  made  out  bills  with  express  refer- 
ence to  the  plans  and  specifications.^^ 

Deduction  from  the  authorities  may  fairly  be  made,  that, 
notwithstanding  the  formal  statements  that  the  void  statu- 
tory original  contract  is  entirely  void  as  to  all  claimants 
other  than  the  original  contractor,  it  may  still  be  looked  to 
for  the  purpose  of  working  out  some  necessary  benefit  for 
those  whom  the  statute  intended  to  favor,  and  not  to  penalize. 

«  WiUamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  CoUege  Co.,  94  Cal. 
229,  237,  29  Pac.  Rep.  629;  Giant  Powder  Co.  v.  San  Diego  F.  Co.,  97 
Cal.  263,  264,  32  Pac.  Rep.  172. 

«  Laidlaw  v.  Marye,   133  Cal.   170,   176,   65   Pac.   Rep.   391. 

"  Baker  v.  Doherty,  97  Cal.  10,  12,  31  Pac.  Rep.  1117;  Joost  v.  Sul- 
livan,  111  Cal.   286,   292,   43  Pac.   Rep.   896. 

See  "Void  Contract  as  Evidence,"  §§  807,  808,  post. 

=0  Void  contract,  effect  on  sureties:  Blyth  v.  Robinson,  104  Cal.  239, 
241,  37  Pac.  Rep.  904;  Kiessig  v.  Allspaugh,  91  Cal.  234,  237,  27  Pac. 
Rep.  662,  13  L.  R.  A.  418,  s.  c.  99  Cal.  452,  454,  34  Pac.  Rep.  106; 
McMenomy  v.  White,  115  Cal.  339,  344,  47  Pac.  Rep.  109;  Summerton 
V.    Hanson,    117   Cal.    252,    49   Pac.   Rep.    135. 

See  "  Sureties,"  §§  605  et  seq.,  post. 

"  W^est  Coast  L.  Co.  v.  Knapp,  122  Cal.  79,  54  Pac.  Rep.  533,  534,  in 
which  the  court  say,  however:  "  They  probably  did  not  then  know 
that  the  contract  was.  void.  They  have  not  misled  defendant,  nor 
induced  him  to  change  his  position,  and  it  does  not  appear  that  they 
have  suppressed  knowledge  of  the  invalidity  while  dealing  with  the 
contractor." 


257  EXTINCTION    OF    CONTRACT.  §  326 


CHAPTER  XVIII. 

BUILDING  CONTRACTS   (CONTINUED).     EXTINCTION  OF  CON- 
TRACT. 

§  326.  Alteration  of  original  contract.     Statutory  provisions. 

§  327.  Same.     To  what  original  contracts  provisions  applicable. 

§  328.  Same.     Statutory  original  contract. 

§  329.  Same.     Alterations,  how  evidenced.     Effect. 

§  330.  Same.     Extending  credit. 

§  331.  Same.     Payments. 

§  332.  Same.     Power  of  architect  to  alter  contract. 

§333.  Novation. 

§  334.  Performance  of  contract.     How  considered  herein. 

§  335.  Same.     Original  contract  valid. 

§  336.  Same.     Original  contract  void. 

§  337.  Same.     Time  of  performance. 

§  338.  Same.     General  rule.     Conditions. 

§  339.  Same.     Excuses  for  non-performance. 

S  340.  Same.     Performance  of  warranty. 

§  341.  Same.     "  Trifling  imperfection." 

§  342.  Same.     Substantial  performance  generally  required. 

§  343.  Same.     General  principles. 

§  344.  Same.     Slight  difference  in  value. 

§  345.  Same.     Conveniences. 

§  346.  Same.     Erection  of  structure  iu  part  only. 

§  347.  Same.     "  Completion  "  of  mining  claim. 

§  348.  Statutory  equivalents  of  completion  for  the  purpose  of  filing 
claims  of  lien. 

§  349.  Same.     Statutory  provisions. 

§  350.  Same.     Occupation  and  use.     Scope  and  object  of  statutory 
provisions. 

§  351.  Same.     Character  of  occupation  or  use. 

§  352.  Same.     Void  contract. 

§  353.  Same.     Acceptance.     Waiver. 

§  354.  Same.     Cessation  from  labor  for  thirty  days.    Statutory  pro- 
vision. 

§  355.  Same.     Scope  of  provision. 

§  356.  Same.     Character  of  cessation. 

§  357.  Same.     As  affected  by  validity  or  invalidity  of  original  con- 
tract. 

§  358.  Abandonment  of  original  contract. 

§  359.  Same.     Owner's  liability. 

§  360.  Same.     Justification  for  abandonment. 
Mech.  Liens  —  17 


§  326  mechanics'  liens.  258 

§  326.  Alteration  of  original  contract.^  Statutory  pro- 
visions. The  Code  of  Civil  Procedure  -  provides,  among  other 
things :  "  No  payment  made  prior  to  the  time  w^hen  the  same 
is  due,  under  the  terms  and  conditions  of  the  contract,  shall 
be  valid  for  the  purpose  of  defeating,  diminishing,  or  dis- 
charging any  lien  in  favor  of  any  person,  except  the  con- 
tractor, but  as  to  such  liens,  such  payment  shall  be  deemed 
as  if  not  made,  and  shall  be  applicable  to  such  liens,  not- 
withstanding that  the  contractor  to  whom  it  was  paid  may 
thereafter  abandon  his  contract,  or  be  or  become  indebted 
to  the  reputed  owner  in  any  amount  for  damages  or  other- 
wise, for  non-performance  of  his  contract  or  otherAvise. 
As  to  all  liens,  except  that  of  the  contractor,  the  whole 
contract  price  shall  be  payable  in  money,  and  shall  not  be 
diminished  by  any  prior  or  subsequent  indebtedness,  offset, 
or  counterclaim,  in  favor  of  the  reputed  owner  and  against 
the  contractor ;  no  alteration  of  any  such  contract  shall  affect 
any  lien  acquired  under  the  provisions  of  this  chapter.  In 
case  such  contracts  and  alterations  thereof  do  not  conform 
substantially  to  the  provisions  of  this  section,  the  labor  done 
and  materials  furnished  by  all  persons  except  the  contractor 
shall  be  deemed  to  have  been  done  and  furnished  at  the  per- 
sonal instance  and  request  of  the  person  who  contracted 
with  the  contractor,  and  they  shall  have  a  lien  for  the  value 
thereof." 

1  Modification  of  contract:  See  Booth e  v.  Squaw  Springs  W.  Co., 
142  Cal.  573.  577,  76  Pac.  Rep.  385:  GiUiam  v.  Brown,  116  Cal.  454,  48 
Pac.  Rep.   486. 

Modification  of  contract  for  street-worlc:  See  Flinn  v.  Mowry,  131 
Cal.    481.    485,    63   Pac.   Rep.    724,    1006. 

Modification  of  contract  to  con.struct  tunnel:  See  SuUivan  v.  Grass 
Valley  F.  M.  &  M.  Co..  77  Cal.  418,  422,  19  Pac.  Rep.  757. 

Premature  payment:  See  Ganahl  v.  Weir,  130  Cal.  237,  239,  62  Pac. 
Rep.   512. 

Hawaii.     See  Pacific  H.  Co.  v.  Lincoln,  12  Hawn.  358,  359. 

Oregon.  Modification  of  orig-inal  contract,  whereby  owner  pur- 
chased materials:  See  Cline  v.  Shell.  43  Oreg.  372,  73  Pac.  Rep.  12. 

Alterations  in  contract  affecting  sureties:  See  Enterprise  Hotel  Co. 
V.    Book    (Oreg.),    85    Pac.    Rep.    333,    336. 

W'asliington.  Provision  in  contract  as  to  modifications:  See  Drum- 
heller  V.  American  S.  Co.,  30  W^ash.  530,  71  Pac.  Rep.  25,  29. 

Interlineation  altering  contract  not  avoiding  same:  See  Young-  v. 
Borzone,  26  Wash.  4,  66  Pac.  Rep.  135,  421. 

Altersitions  of  contract  affecting  sureties:  See  De  Mattos  v.  Jor- 
dan, 15  Wash.  378.  46  Pac.  Rep.  402. 

»  Kerr's  Cyc.  Code  Civ.  Proc,  §  1184,  in  effect  March  15,   1887. 


M 


259  EXTINCTION    OP    CONTRACT.  §§327,328 

Another  section^  of  the  same  code  provides:  "It  shall 
not  be  competent  for  the  owner  and  contractor,  or  either  of 
them,  by  any  term  of  their  contract,  or  otherwise,  to  waive, 
affect,  or  impair  the  claims  and  liens  of  other  persons, 
whether  with  or  without  notice,  except  by  their  written  con- 
sent, and  any  term  of  the  contract  to  that  effect  shall  be  null 
and  void." 

§  327.  Same.  To  what  original  contracts  provisions 
applicable.  All  of  the  provisions  set  forth  in  the  foregoing 
section  undoubtedly  apply  to  statutory  original  contracts; 
and  the  extent  of  their  application  to  non-statutory  original 
contracts  has  been  elsewhere  considered.'*  The  provisions  as 
to  contracts  apply  only  to  "  original  contracts."  ^ 

The  expression  "  any  such  contract,"  used  in  the  first  part 
of  section  eleven  hundred  and  eighty-four,  above  quoted, 
relating  to  payments,  and  the  expression  "  such  contracts," 
in  the  last  sentence  in  the  above  quotation,  have  been  held  to 
relate  only  to  statutory  original  contracts.** 

§  328.  Same.  Statutory  original  contract.  While  there 
are  points  at  which  questions  will  arise,"  it  has  been  said  that 

»  Kerr's  Cyc.  Code  Civ.  Proc.,  J  1201. 

*  See  §§  258  et  seq.,  ante.  In  Anderson  v.  Johnston,  120  Cal.  657,  659, 
53  Pac.  Rep.  264,  the  question  arose  between  the  contractor  and  the 
owner,  and  an  executed  oral  agreement  changing  the  terms  of  a 
written  non-statutory  original  contract  was  allowed.  Some  of  tlie 
provisions  do  not  seem  to  be  applicable  to  non-statutory  original 
contracts:  Denison  v.  Burrell,  119  Cal.  180,  183,  51  Pac.  Rep.  1. 

See   §§  258   et  seq.,   ante. 

=  See  §  211,  ante. 

"  Sidlinger  v.  Kerkow,  82  Cal.  42,  44,  22  Pac.  Rep.  932.  See  §§  269 
et  seq.,  ante,  and  "  Payments,"  §§  272  et  seq.,  ante. 

'  See  "  Impairment  of  Liens,"  S  284,  ante. 

Before  the  enactment  of  §§  1184  and  1201,  Code  of  Civil  Procedure, 
in  present  form,  where  the  contract  provided  "in  case  any  additions, 
omissions,  or  alterations  of  the  plans  may  be  required  by  the  owner 
during  the  progress  of  the  work,  they  shall  be  acceded  to  by  the 
contractor  or  contractors,  and  be  carried  into  effect  without  in  any 
way  violating  or  vitiating  any  contract  that  might  have  been  made 
for  work  or  materials  connected  therewith,"  it  was  held  that  the 
owner  might  insist  upon  departures  from  the  specifications  without 
violating  the  contract  between  them:  Downing  v.  Graves,  55  Cal. 
544.  548  (decided  in  1880;  suit  by  a  per.son  deemed  to  be  a  sub- 
contractor for  labor  and  materials,  but  no  lien  was  attempted  to  be 
enforced). 


§  328  mechanics'  liexs.  260 

the  statutory  original  contract  is  subject  to  change  and 
modification  by  the  parties  thereto.^  The  statute/'  however, 
does  not,  in  express  terms,  make  the  alterations  of  a  valid 
statutory  original  contract  void  for  failure  to  comply  with 
any  of  the  essential  formalities  of  the  statutes;  but,  under 
the  provision  of  section  eleven  hundred  and  eighty-four,^" 
above  quoted,  the  alterations  of  such  contracts,  so  far  as 
they  relate  to  payments,  must  comply  substantially  with  the 
provisions  of  the  last-named  section ;  otherwise  the  claim- 
ant maj'  have  a  lien  for  the  value  of  the  labor  done  and 
materials  furnished.^^ 

Section  twelve  hundred  and  one,  above  quoted,  applies  to 
the  alterations  of  statutory  original  contracts  which  affect 
or  impair  a  lien  already  acquired,  but  not  to  non-statutory 
original  contracts;  ^-  and,  independently  of  such  a  provision, 
where  there  was  an  original  contract,  the  owner  and  con- 
After  aineniliiieut  o£  §  11S4  and  enactment  of  §  1201,  where  the 
statutory  orig-inal  contract  provided  that  tlie  owner  is  at  liberty  to 
have  changes  or  alterations  made  without  affecting  the  contract,  the 
cost  thereof  to  be  added  or  subtracted,  as  the  case  mig-ht  be,  and  a 
second  and  unrecorded  contract  was  made  amending  the  first,  the 
court  deemed  it  unnecessary  to  consider  the  fact  of  such  amendments, 
as  the  first  and  original  contract  was  held  void  for  want  of  filing,  the 
court  adding  (Downing  v.  Graves,  supra):  "They  were  not  filed, 
and  neither  add  to  nor  detract  from  the  original  as  a  valid  contract": 
Greig   v.    Riordan,    99    Cal.    316.    31S,    321,    33    Pac.    Rep.    913. 

Section  1183  does  not  expressly  reauire  the  filing  of  alterations  of 
the  original  contract,  and  where  the  contract  was  abandoned,  and 
there  was  a  cessation  of  work  for  more  than  thirty  days,  which  con- 
stituted a  statutory  completion  of  the  building  (see  §§  326  et  seq., 
ante),  for  the  purpose  of  setting  the  time  running  within  which  claims 
of  lien  inust  be  filed,  for  all  purposes  of  claiming  a  lien,  it  was  held 
that  a  subsequent  original  contract  entered  into  with  another  original 
contractor  was  as  disconnected  from  the  first  original  contract  as  if  it 
had  been  for  the  construction  of  a  different  building:  Johnson  v. 
La  Grave,   102  Cal.  324.  326,  36  Pac.  Rep.  651. 

AVashington.  Where  the  material-man  delivered  a  quantity  of 
brick  at  the  ruling  price  in  the  market,  and  when  the  price  fell  he 
threw  off  fifty  cents  a  thousand,  it  was  held  that  "this  was  a  mere 
modification  of  the  contract,  and  not  a  different  one":  Fairhaven 
L.  Co.   V.  Jordan,   5   Wash.   729,   734,   32  Pac.   Rep.   729. 

"  Howe  V.  Schmidt   (Cal.  Sup.),  90  Pac.  Rep.  1056   (dictum). 

»   Kerr's  Cyc.  Code  Civ.  Proc.,  §  1183. 

"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1184. 

"  Previously,  and  under  the  amendment  of  1885  to  §  1183,  Kerr's 
Cyc.  Code  Civ.  Proc,  the  penalty  for  failure  to  comply  substantially 
with  §  1184  was  to  render  the  contract  or  alteration  wholly  void. 

"  Southern  Cal.  L.  Co.  v,  Jones,   133  Cal.  242,   245,  65  Pac.  Rep.  378. 

aoc  f  214,   ante. 


261  EXTINCTION   OF    CONTRACT.  §  329 

tractor  could  not,  by  an  alteration  of  the  contract,  impair  the 
liens  of  sublienors  alread}'  acquired,  without  their  consent. ^^ 

§  329.  Same.  Alterations,  how  evidenced.  Effect.  It  has 
been  held  that  a  contract  for  extra  work,  or  for  an  extension 
of  time,^*  under  a  building  contract,  is  not  required  to  be  in 
writing,  if  the  original  contract  was  not  required  to  be  writ- 
ten.^^  A  substantial  performance  of  the  contract,  according 
to  the  terms  and  conditions  agreed  upon,  is  a  condition 
precedent  to  the  contractor's  right  to  maintain  an  action  to 
foreclose  a  lien,  but  a  contract  in  writing  may  be  altered  by 
a  contract  in  writing,   or  by  an  executed  oral   agreement, 

'^  I'mler  act  of  18«:i.  §  10  of  which  simply  provided,  as  §  1184  now 
does,  that  payments  made  prior  to  the  time  when  they  fell  due  were 
of  no  effect  against  the  claimants  under  the  original  contractor,  and 
the  act  contained  no  provision  as  above  set  forth  as  to  the  contract. 
And  it  was  said  in  Davis  v.  Living-ston,  29  Cal.  283,  291:  "It  is 
assumed  in  the  theory  of  the  act  that  tradesmen,  before  furnishing- 
materials  to  the  contractor,  and  laborers,  before  entering  his  service, 
will  inform  themselves  as  to  whether  a  written  contract  has  been 
made,  and  if  so,  then  that  they  will,  by  inspection  or  otherwise, 
ascertain  its  provisions;  and  if  they  conclude  to  deal  with  the  con- 
tractor, the  one  supplying  him  with  materials,  and  the  other  with 
labor,  they  are  presumed  to  do  so  on  the  faith  of  the  original  con- 
tract to  which  they  have  thus  had  access.  And  it  follows  that  no 
agreement  subsequently  made  between  the  principal  parties,  unless 
seasonably  disclosed  to  the  workmen  and  material-men,  can  be  set  up 
to   their   disadvantage." 

And.  under  the  same  act,  it  was  held  that  a  change  could  not  be 
made  in  the  original  contract  without  the  consent  of  subordinate 
lien  claimants,  or  timely  notice  thereof  to  them  before  the  interest 
of  the  lien-holder  attached:  Shaver  v.  Murdock,  36  Cal.  293,  297; 
White  V.  Soto,  82  Cal.  654,  657,  23  Pac.  Rep.  210  (an  action  by  a  con- 
tractor on  a  contract  providing  for  alterations).  At  this  time  the 
contract  was  not  required  to  be  filed,  and  §  1201  was  not  in  force; 
but  it  seems  to  have  been  then  held  that,  between  tlie  original  con- 
tractor and  the  owner,  the  contract  may  be  changed  subsequently  by 
oral  agreement:  White  v.  Soto,  supra. 

SiihHequcnt  aKreeiiient,  whereby  the  owner,  in  consideration  of  a 
deduction  of  two  hunured  dollars  made  by  the  contractor  from  tlie 
contract  price,  agreed  to  perforin  certain  specified  woi-k  after  the 
completion  of  the  building,  and  released  the  contractor  from  his  con- 
tract obligation  to  perform  the  same,  is  governed  by  the  same  rule  of 
law:    Shaver  v.   Murdock.    36   Cal.    293,    297. 

"  Time  tor  perforiiiuiico  of  oontraet  (non-statutory)  may  be  subse- 
quently enlarged  by  parol:  Luckhart  v.  Ogden,  30  Cal.  547;  Wangen- 
heim  v.   Graham.   39   Cal.   169. 

"  Barilari  v.  Ferrea,  59  Cal.  1,  4  (action  by  contractor,  under 
§§1183  and  1184  of  the  Code  of  Civil  Procedure,  as  they  stood  in 
1876;  §  1201  was  not  in  force).  See  KerrN  Cyo.  Civ.  Code,  §  1698,  and 
note. 


§  330  mechanics'  liens.  262 

and  when  the  contract  as  modified  is  thus  performed  in 
accordance  with  such  modifications,  the  failure  to  finish  the 
building  in  accordance  with  the  original  terms  of  the  eon- 
tract  does  not  affect  the  right  to  foreclose  the  lien.^" 

Where  owner  accepts  performance  of  contract  as  modi- 
fied, he  cannot  refuse  to  pay  the  balance  of  the  contract 
price  on  the  ground  that  the  contract  was  not  performed  as 
originally  agreed/^  and  where  the  contract  is  modified  by  the 
parties  one  day  prior  to  the  time  when  the  original  contract 
should  have  been  completed,  it  necessarily  extended  the 
time  of  performance,  and  is  a  waiver  of  damages  for  the 
delay.^^ 

§  330.  Same.  Extending  credit.  There  is  nothing  in  sec- 
tion eleven  hundred  and  ninety  ^^  indicating  that  the  credit 
therein  mentioned  refers  to  liens  based  on  direct  contract 
with  the  owner ;  its  language  makes  it  applicable  to  all  liens ; 
and  were  section  twelve  hundred  and  one  ^^  construed  as  in- 
validating the  terms  of  credit  between  the  owner  and  the 
original  contractor  when  the  same  affected  or  impaired  other 
liens,  still  section  eleven  hundred  and  ninety  would  apply 
to  liens  other  than  those  inhibited  by  section  twelve  hundred 
and  one.^^ 

18  Anderson  v.  Johnston,  120  Cal.  657,  659,  53  Pac.  Rep.  264  (non- 
statutory   original    contract). 

Washington.  Where  the  original  contract  required  written  evi- 
dence of  alterations  of  the  contract,  the  owner  waives  this  provision 
by  orally  directing  alterations  which  are  accepted  by  the  contractor: 
Crowley  v.  United  States  F.  &  G.  Co.,  29  W^ash.  268,  69  Pac.  Rep.  784 
(action  on  contractor's  bond). 

"  Soothe  V.  Squaw  Springs  W.  Co.,  142  Cal.  573,  578,  76  Pac.  Rep. 
385. 

Colorado.  Where  a  modification  of  the  original  contract  is  made 
under  a  provision  therein  allowing  such  modification,  the  contractor 
cannot  sue  for  damages  resulting  from  such  modification:  City  and 
County   of   Denver   v.   Hindry    (Colo.),    90   Pac.   Rep.    1028. 

18  McGinley   v.   Hardy,   18   Cal.   115. 

w  Kerr's  Cyc.  Code  Civ.  Proc,  §  1190. 

2»  Kerr's  Cyc.  Code  Civ.  Proe..  §  1201,  and  note. 

"  Hughes   Bros.   v.   Hoover,    3   Cal.   App.    145,    84   Pac.   Rep.    681. 

Legislature  cannot  extinguish  the  constitutioual  mandatory  liens  at 
the  expiration  of  the  credit  extended,  or  at  any  other  time,  but  may 
only  legislate  with  reference  to  the  remedy:  Hughes  Bros.  v.  Hoover, 
3  Cal.  App.  145,  84  Pac.  "Rep.  681. 

See  "Waiver,"  §§  627  et  seq.,  post;  "Impairment,"  §  284,  ante. 


263  EXTINCTION   OF    CONTRACT.  §  331 

§  331.  Same.  Payments.  This  subject  has  already  re- 
ceived attention  under  other  heads.--  An  alteration  in  the 
statutory  original  contract,  under  which  a  payment  was  to  be 
made  to  the  contractor  when  the  building  was  "  completed 
and  accepted  by  the  architect,"  is  not  invalid  as  against  lien 
claimants  who  have  not  served  notice  on  the  owner  under 
section  eleven  hundred  and  eighty-four,-^  when  the  owner 
waives  the  certificate  of  the  architect,  the  provision  of  sec- 
tion twelve  hundred  and  one  ^*  as  to  waiving,  affecting,  or 
impairing  the  liens  of  other  persons  not  applying  to  an 
instalment  payable  at  the  completion  of  the  building.^^ 

Rights  of  owner  aud  claimant.  It  was  held  in  an  early  case  that 
the  owner  and  claimant  have  the  right  to  rescind  an  arrangement  for 
the  extension  of  payment  of  a  debt  legally  and  justly  entered  into 
under  mistake  as  to  tlie  application  of  a  law  allowing  such  exten- 
sion, provided  that  tlie  riglits  of  no  third  party  intervened,  wliich  it 
would  be  inequitable  to  disturb:  Gamble  v.  VoU,  15  Cal.  508,  510. 

="  See  §§  251,   269-280,  ante. 

*3  Kerr's   Cyc.   Code  Civ.  Proc,   §  1184. 

"  Kerr's  Cyc.  Code  Civ.  Proo.,  §  1201. 

==  Valley  L.  Co.  v.  Struck,  146  Cal.  266,  272,  80  Pac.  Rep.  405  (but 
such  payment,  or  waiver  of  the  certificate,  not  valid  as  against  lien 
claimants  who  had  given  such  notice  before  such  payment.  Per 
Shaw,  J.,  Angellotti,  J.,  and  Beatty,  C  J.,  concurring).  See  also  New- 
port W.  &  L.  Co.  V.  Drew,  125  Cal.  585,  58  Pac.  Rep.  187. 

Compare  §  10,  act  of  1862.  It  seems  to  have  been  held  that  if  the 
payment  had  been  made  previous  to  the  time  set  forth  in  the  contract, 
whether  notice  is  given  or  not,  the  subclaimant  would  have  a  lien  for 
the  amount  so  paid,  under  a  contract  to  which  this  provision  is 
applicable:  Henry  v.  Wadsworth,  38  Cal.  356,  360  (1862).  See  Quale 
V.  Moon,  48  Cal.  478,  482.  See  "  Payments,"  §§  269-280,  ante,  and 
"Notice,"  §547,  post,  and  see  Valley  L.  Co.  v.  Struck,  146  Cal.  266,  80 
Pac.  Rep.  405,  concurring  opinion  of  Shaw,  J.  (p.  272):  "Nor  does  the 
statute  declare,  as  the  main  opinion  seems  tacitly  to  assume,  that  it  is 
only  payments  made  prior  to  tlie  times  mentioned  in  the  statute  itself 
which  cannot  be  prematurely  made  without  subjecting  the  owner  to 
liability  to  pay  again." 

In  tlie  absence  of  direction,  application  of  payments  is  made  to 
the  earliest  debt  in  date  of  maturity,  and  application  should  be 
made  pro  rata  on  obligations  maturing  at  the  same  time,  although 
they  may  not  have  been  contracted  at  the  same  time:  Star  M.  &  L. 
Co.  V.  Porter  (Cal.  App.,  Nov.  24,  1906),  88  Pac.  Rep.  497,  498  (under 
§  1479,  subd.  3,  Kerr's  Cyc.  Civ.  Code;  and  see  note  to  same). 

See  also  §  254,  ante. 

Colorado.  A  covenant  in  the  original  contract  to  relieve  the  owner 
from  any  liability  for  liens  is  void,  under  Laws  of  1893,  p.  316,  §  2, 
requiring  the  owner  to  withhold  a  certain  percentage  of  the  con- 
tract price  for  thirty-five  days  after  the  completion  of  the  con- 
tract: Aste  V.  Wilson,  14  Colo.  App.  323,  59  Pac.  Rep.  846;  3  Mills's  Ann. 
Stats.,  1st  ed.,  §  2867a,  repealed  by  3  Mills's  Ann.  Stats.,  2d  ed.,  §  2887. 

Utah.  See  Morrison  v.  Carey-Lombard  L.  Co.,  9  Utah  70  (1890),  33 
Pac.  Rep.  238.  See  Carey-Lombard  L.  Co.  v.  Partridge,  10  Utah  322 
(1890);  Teahen  v.  Nelson,  6  Utah  363,  23  Pac.  Rep.  764   (1888). 


§§  332, 333  mechanics'  liens.  264 

§  332.  Same.  Power  of  architect  to  alter  contract.  The 
architect  has  no  power,  as  such,  to  change  the  contract  or 
plans  in  material  respects,  of  his  own  volition,  unless  such 
power  is  expressly  conferred  on  him  by  the  contract ;  other- 
wise it  would  be  in  his  power  to  give  the  owner  a  different 
building  than  that  he  contracted  for,  and  perhaps  bankrupt 
the  owner.  So  he  cannot  raise  the  foundation  of  a  building 
eighteen  inches,  which  involved  an  increased  cost  of  seven- 
teen hundred  dollars.^® 

§  333.  Novation.  Novation  is  the  substitution  of  a  new 
obligation  for  an  existing  one.^'  The  assignee  of  the  con- 
tractor takes  the  assignment  with  the  burdens.^^ 

Where  the  original  contractor  assigns  his  whole  contract 
before  performance,  and  a  new  contractor  steps  into  his 
shoes,  with  the  knowledge  and  consent  of  the  owner,  and 
assumes  all  liabilities,  without  any  new  contract,  he  is  the 
only  person  with  whom  the  owner  is  to  settle,  and  there  is  but 
one  contract  on  the  part  of  the  owner ;  and  the  first  con- 
tractor, on  final  settlement,  is  entitled  to  nothing.^^ 

26  Gray  v.  La  Societe  Frangaise  de  B.  M.,  131  Cal.  566,  571,  63  Pac. 
Rep.   848. 

See   §  125,  ante. 

-'  Kerr's  Cyc.  Civ.  Code,  §  1530,  and  note.  See  also  Kerr's  Cjc.  Civ. 
Code,  §§  1531-1533,  and  notes. 

See,  g-enerally,  Long  Beach  School  Dist.  v.  Dodge,  135  Cal.  401,  406, 
67  Pac.  Rep.  499. 

Montana.  The  contractor  cannot  plead  that  the  owner  assumed 
the  debt  of  a  subclaimant,  unless  it  be  shown  that  there  was  a  nova- 
tion whicli  released  the  contractor:  Aldritt  v.  Panton,  17  Mont.  187, 
42  Pac.  Rep.  767. 

Oklalionia.     See  Ryndak  v.  Seawell,  13  Okl.   737,   76  Pac.  Rep.  170. 

Oregon.  See  Gray  v.  Jones  (Oreg-.),  81  Pac.  Rep.  813;  North  Pacific 
L.   Co.   V.   Spore,   44   Oreg.   462,    75   Pac.   Rep.   890. 

AVasliin^on.  See  Anderson  v.  McDonald,  31  Wash.  274,  71  Pac.  Rep. 
1037;  Brodek  v.  Farnum,  11  W^ash.  565,  40  Pac.  Rep.  189;  Littell  v. 
Miller,   8  W^ash.  566,   28  Pac.  Rep.   1035. 

2»  Rauer  v.   Fay,    128  Cal.   523,    526,    61   Pac.   Rep.   90. 

The  original  contractor  cannot  sliift  the  burden  of  the  obligation  of 
a  bond  to  claimants  by  assigning  the  contract  without  the  consent  of 
the  persons  entitled  to  sue  on  the  bond:  French  v.  Powell,  135  Cal. 
636,    642,    68   Pac.    Rep.    92. 

=»  Harmon  v.  San  Francisco  &  S.  R.  R.  Co.,  86  Cal.  617.  619,  25 
Pac.  Rep.  124;  Gordon  H.  Co.  v.  San  Francisco  &  S.  R.  R.  Co.,  86  Cal. 
620,    623,    25   Pac.   Rep.    125. 

Compare:   Johnson   v'.  La  Grave,   102   Cal.   324,   326,   36  Pac.  Rep.   651. 

See  "  Assignees,"  §  588,  post. 


265  EXTINCTION    OF    CONTRACT.  §  334 

Assignment  made  by  original  contractor  to  another  person, 
by  way  of  novation,  before  the  completion  of  the  work,  vests 
in  the  assignee,  prior  to  the  expiration  of  thirty-five  days 
from  the  date  of  the  completion  of  the  work,  no  rights  differ- 
ent from  or  superior  to  those  of  the  original  contractor;  but 
a  mere  novation  of  the  original  contract  for  the  completion 
of  the  structure,  by  assignment  to  another  contractor,  would 
not  affect  the  right  of  set-off  or  counterclaim  as  against  the 
original  contractor. "° 

Fact  that  purchaser  of  estate  property,  who  assumed  a  debt 
for  work  done  thereon  under  a  contract  with  the  executor, 
was  not  disturbed  in  possession  does  not  estop  him  from 
avoiding  a  mechanic's  lien  on  the  property  for  such  work.^^ 

§  334.     Performance  of  contract.  How  considered  herein.^- 

The  fact  of  performance  of  the  contract,  or  completion  of  the 
building,  improvement,  or  structure,  may  be  viewed  from 
two  standpoints:  1.  As  a  circumstance  giving  rise  to  a  right 
to  a  lien  or  cause  of  action ;  and  2.  As  the  point  marking  the 
commencement  of  the  period  within  which  claims  of  lien 
must  be  filed  under  section  eleven  hundred  and  eighty- 
seven.^^  As  to  the  first,  it  is  evident  that  the  completion  of 
the  building  may  be  the  performance  of  a  part,  only, 
of  the  work  under  the  contract,  and  that  the  completion  of 
the  former  may  not  be  coincident  with  the  performance 
of  the  latter.'^  For  convenience,  however,  these  subjects  will 
be  considered  under  one  head. 

The  term  "  completion,"  in  the  absence  of  any  statutory 
qualification  or  definition,  would  be  construed  to  mean 
actual  completion,  and  there  would  be  no  room  for  its  con- 
struction by  the  court. ^^    But,  for  the  purpose  of  filing  liens 

=»  First  Nat.  Bank  v.  Perris  Irr.  Dist.,  107  Cal.  55,  63,  67,  40  Pac. 
Rep.   45.     See   Downing  v.  Graves,   55  Cal.   544,    548. 

See  "  Notice,"  §§  547  et  seq.,  post. 

''  San  Francisco  Pav.  Co.  v.  Fairfield,  134  Cal.  220,  223,  66  Pac. 
Rep.   255. 

^  See  §§  348  et  seq.,   post. 

s*  Kerr's   Cyc.   Code   Civ.   Proc.,   §  1187. 

^  Ila^vaii.  Completion  of  contract  not  synonymous  with  comple- 
tion of  tlie  l)uilding-:  Pacific  H.  Co.  v.  Lincoln,  12  Hawn.  358,  361. 

^  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Ang-eles  College  Co.,  94  Cal. 
229,  237,  29  Pac.  Rep.  629:  Schallert-Ganahl  L.  Co.  v.  Sheldon  (Cal.),' 
32  Pac.  Rep.  235. 

Colorado.     Lichty  v.  Houston  L.  Co.   (Colo.),  88  Pac.  Rep.  846. 


§§  335, 336  mechanics'  liens.  263 

section  eleven  hundred  and  eighty-seven  ^^  made  the  occupa- 
tion, use,  or  acceptance  of  a  building,  etc.,  or  cessation  from 
work  for  thirty  days  on  an  unfinished  building,  the  equiva- 
lent of  completion,  irrespective  of  its  actual  completion. 
These  subjects  will  be  considered  in  the  following  sections. 

§  335.  Same.  Original  contract  valid.  AVhere  the  original 
contract  is  valid,  sublienors  are  bound  by  its  terms,  and  the 
non-completion  or  non-performance  of  the  original  contract 
by  the  original  contractor  would  be  followed  by  a  corre- 
sponding limitation  upon  the  rights  of  the  sublienors,  as 
well  as  upon  those  of  the  original  contractor ; ""  and  proper 
deductions  would  be  made  for  trifling  imperfections  in  the 
work.^^ 

When  the  contractor  has  furnished,  through  himself  or 
his  subcontractors,  all  the  work  and  materials  which  he  has 
agreed  to  furnish,  then  the  building  is  complete,  so  far  as 
he  and  his  subclaimants  are  concerned;  and  they  may  then 
file  their  respective  claims  of  lien,  and  each  will  then  become 
entitled  to  his  proper  share  of  the  fund.^® 

§  336.  Same.  Original  contract  void.  Where,  however, 
the  statutory  original  contract  is  void,  it  has  already  been 
shown  *°  that  sublienors  have  a  lien  dependent  entirely  upon 
the  statute,  and  not  upon  the  contract.  But  the  contract 
for  the  erection  of  a  building,  although  void,  is  nevertheless 
admissible,  in  an  action  to  foreclose  the  lien,  to  determine 
the  character  of  the  building  to  be  erected,  and  thereby  to 
furnish  the  test  by  which  it  can  be  known  when  the  building 
is  complete,  and  the  court  say :  "  It  is  sufficiently  difficult, 
at  the  present  time,  for  lien  claimants  to  determine  the  true 

3«  Kerr's   Cyc.   Code   Civ.   Proc,   §  1187. 
"  See  S§  315-318,  ante. 

38  See  "Liability  of  Owner,"  §§  523  et  seq.,  post;  "Cumulative  Reme- 
dies,"  §§  638   et  seq.,  post. 

AVashinRton.  See  Washington  B.  Co.  v.  Land  &  R.  Imp.  Co.,  12 
Wash.   272,  40  Pac,  Rep.  982. 

39  Roylance  v.  San  Luis  Hotel  Co.,  74  Cal.  273,  278,  20  Pac.  Rep.  573, 
quoting  and  approving  Perry  v.  Brainard  (Cal.),  8  Pac.  Rep.  882,  8 
West  Coast  Rep.   4. 

*°  See  "Void  Contract,"  §§315  et  seq.,  and  Giant  Powder  Co.  v. 
San   Diego  F.  Co.,   97   Cal.   263,    266,    32   Pac.   Rep.    172. 


267  EXTINCTION    OF    CONTRACT.  §  337 

date  at  whicli  they  should  file  their  notice  [claim]  of  liens, 
but  if  the  contract  as  to  the  character  of  the  building  to  be 
erected  is  not  to  furnish  a  test  of  completion,  then  no  test  is 
known  to  the  law,  and  the  difficulties  in  their  way  would  be 
absolutely  insurmountable."  '^  And  where  such  contract  is 
void,  although  it  cannot  be  enforced,  the  contractor  may 
nevertheless  lawfully  perform  it,  and  the  owner  accept  such 
performance,  and  neither  party  be  guilty  of  any  wrong  in 
so  doing. ■*- 

§  337.  Same.  Time  of  performance.  Neither  at  law  nor 
in  equity  is  a  contracting  party  excused  from  performing  his 
contract  within  the  time  agreed  upon,  further  than  that,  in 
certain  contracts,  failure  to  perform  strictly  according  to  the 
contract,  as  to  time,  does  not  authorize  the  other  party  to 
rescind.  He  may  always,  however,  recover  any  damage  he 
has  suffered  in  consequence  of  such  failure.  The  statement 
that  time  is  not  of  the  essence  of  the  contract  is  misleading 
in  any  case,  and  has  no  force  whatever  in  an  action  at  law. 
In  such  cases,  to  enable  one  to  rescind  for  a  breach  on  the 
part  of  the  other  party,  the  failure  must  be  as  to  a  material 
matter,  and  depends  upon  the  circumstances  of  the  case. 
Cases  in  equity  in  which  this  rule  is  applied  are  usually 
for  the  specific  performance  of  contracts  for  the  purchase  of 
land.  Often  the  failure  is  merely  to  pay  at  a  specified  date. 
A  slight  delay  in  such  a  case  is  usuall}^  of  no  great  impor- 
tance, and  the  detriment  is  easily  compensated  in  interest. 
An  agreement  to  construct  or  to  render  services  is  quite 
different.     There,  as  a  general  rule,  time  is  of  importance.*^ 

Where  no  time  is  specified,  the  contract  must  be  performed 
within  a  reasonable  time,  and  this  is  a  question  of  fact, 
depending  upon  the  character  of  the  enterprise,  the  obstacles 

"  Barker  v.  Doherty,  97  Cal.  10,  12,  31  Pac.  Rep.  1117.  See  Giant 
Powder  Co.  v.  San  Dieg-o  F.  Co.,  78  Cal.  193,  197,  20  Pac.  Rep.  419,  s.  c. 
97  Cal.  263,  32  Pac.  Rep.  172.  Notwithstanding  the  amendment  of  1897 
to  §  1187,  this  language  seems  applicable. 

See  "Filing  Claim,"  §§  416  et  seq.,  post,  and  §  315,  ante. 

"  Kiessig  v.  Allspaugh,  91  Cal.  234,  237,  27  Pac.  Rep.  662,  13  L.  R.  A. 
418. 

"  American  Type  Founders'  Co.  v.  Packer,  130  Cal.  459,  462,  62  Pac. 
Rep.  744.     See  Harlan  v.  Stufflebeem,  87  Cal.  508,  25  Pac.  Rep.  686. 


§§  338, 339  mechanics'  liens.  268 

to  be  overcome,  the  length  of  time  required  by  diligent  anu 
proper  effort  to  do  the  work,  and  the  surrounding  circum- 
stances.** 

§  338.  Same.  General  rule.  Conditions.  Where  the  con- 
tractor is  employed  under  a  special  contract,  he  must  show 
that  he  has  completed  the  contract,  and  where  mutual  prom- 
ises are  concurrent  and  dependent,  neither  party  can  demand 
performance  without  performance  on  his  part.*^  When  the 
contract  provides  that  the  structure  shall  be  built  under 
the  direction  and  to  the  satisfaction  of  an  agent  or  superin- 
tendent of  the  owner,  his  acceptance  is  binding  and  con- 
clusive, in  the  absence  of  fraud  or  mistake.**'  Where  perform- 
ance is  tendered,  it  must  not  be  subject  to  any  condition  to 
which  the  party  is  not  entitled.*^ 

§  339.  Same.  Excuses  for  non-performanoe.  The  con- 
tractor who  has  contracted  to  do  so  must  perform,  even 
where  the  whole  work  is  consumed  by  fire,  without  apparent 
fault  of  either  party.*®    In  those  cases  where  the  owner  re- 

"  See  Los  Angeles  T.  Co.  v.  Wilshire,  135  Cal.  654,  657,  67  Pac. 
Rep.    1086. 

AVa.shiugton.  Delay  in  performance  as  breach  of  contract:  See 
Beebe  v.  Redward,  35  Wash.  615,  77  Pac.  Rep.  1052. 

*^  Ernst  V.  Cummings,  55  Cal.  179,  184;  First  Nat.  Bank  v.  Ferris 
Irr.  Dist.,  107  Cal.  55,  65,  40  Pac.  Rep.  45;  Pacific  R.  M.  Co.  v.  English, 
118  Cal.  123,  128,  50  Pac.  Rep.  383  (subcontractor);  Anderson  v.  John- 
ston,  120  Cal.   657,   659,   53  Pac.  Rep.   264. 

See  Kerr's  Cye.  Code  Civ.  Proc.,  §  1439,  and  note. 

Concurrent  conditions:  See  Russ  L.  &  M.  Co.  v.  Muscupiabe  L.  & 
W.  Co..   120  Cal.  521,  526,  52  Pac.  Rep.  995,  65  Am.  St.  Rep.   186. 

Colorado.  See  McGonigle  v.  Klein,  6  Colo.  App.  306,  40  Pac.  Rep. 
465;   Cochran  v.  Balfe,   12  Colo.  App.   75,   54  Pac.  Rep.   399. 

*"  Moore  V.  Kerr,  65  Cal.  519,  521,  4  Pac.  Rep.  542,  citing  Smith  v. 
Brady,  17  N.  Y.  177;  Wyckoff  v.  Meyers,  44  N.  Y.  145;  Stewart  v.  Ket- 
eltas,  36  N.  Y.  388;  Hudson  v.  McCartney,  33  Wis.  340. 

"  Jones  V.  Shuey  (Cal.,  April  3,  1895),  40  Pac.  Rep.  17;  Bryson  v. 
McCone.    121    Cal.    153,    53   Pac.    Rep.    637. 

An  offer  to  dig  anotlier  vj-ell,  when  the  one  constructed  was  incom- 
plete, is  not  an  offer  to  perform:  McPherson  v.  San  Joaquin  County 
(Cal.,  March  24,  1899),  56  Pac.  Rep.  802. 

Tendering  performance  ^vitlioiit  condition:  See  Schindler  v.  Green 
(Cal.  App.,  Aug.  14,  1905),  82  Pac.  Rep.  341,  631;  on  r-ehearing,  149  Cal. 
752. 

«  Clark  V.  Collier,  100  Cal.  256,  258,  34  Pac.  Rep.  677.  And  see 
Hogan  V.  Globe  Mut.  B.  &  L.  Assoc,  140  Cal.  610,  613,  74  Pac.  Rep.  153. 

See  "Construction  of  Contracts,"  §  216,  ante,  and  §  353,  post. 


! 


269  EXTINCTION    OF    CONTRACT.  §  339 

serves  the  right  to  terminate  the  contract  at  any  stage  of 
the  work,  the  contractor  cannot  recover  damages  for  not 
being  permitted  to  complete  the  same ;  *^  but  when,  entirely 
through  the  fault  of  the  owner,  the  contractor  fails  to  com- 
plete the  contract  within  the  time  ^°  or  in  the  manner  ^' 
agreed  in  the  contract,  the  contractor  may  recover.^-  While 
a  prevention  of  performance  may  excuse  performance,^^  yet 

As  to  destruction  of  building  by  tire  before  completion,  and  effect 
on  right  to  lien,  see  2  Am.   &  Eng.  Ann.  Cas.   689-691,   812. 

A.s  to  lien  on  land  ^vhere  improvement  destroyed  by  tire  before 
completion,  see  note  2  Am.  &  Eng.  Ann.  Cas.  812. 

Wusbingtou.  So  where  the  subcontractors  fail  to  furnish  the 
material  to  enable  the  contractor  to  complete  the  building  in  time;  or 
where  the  delay  was  owing  to  the  severity  of  the  weather,  if,  regard- 
less of  this,  the  work  could  have  been  carried  on  with  safety  and 
durability  by  the  exercise  of  extra  means  or  effort  on  the  part  of 
defendant  during  the  continuance  of  sucli  weather:  for  "presumably 
they  took  this  into  consideration,  and  demanded  a  higher  price  for 
their  work  by  reason  of  these  necessary  inconveniences,  and  on 
account  of  the  extra  expenses  incident  to  building  in  the  winter": 
Reichenbach  v.  Sage,  13  Wash.  364,  43  Pac.  Rep.  354,  52  Am.  St.  Rep.  15. 

■•»  McPherson  v.  San  Joaquin  County  (Cal.,  March  24,  1899),  56  Pac. 
Rep.   802. 

•■"  White  V.  Fresno  Nat.  Bank,  98  Cal.  166,  167,  32  Pac.  Rep.  979. 
Likewise  when  the  delay  is  owing  to  an  agreed  modification  of  the 
contract,  the  owner  cannot  set  off  damages  for  the  delay:  McGinley 
V.  Hardy,  18  Cal.   116. 

"•^  Gray  v.  Wells,  118  Cal.  11,  15,  50  Pac.  Rep.  23,  in  which  it  was  held 
that  a  wall  cannot  be  said  to  be  fully  constructed  until  the  cement 
has  had  time  to  set  and  become  hardened,  and  any  act  during  that 
time  which  causes  an  injury  to  it  may  properly  be  treated  as  an  act 
done  during  the  process  of  construction. 

As  to  furnishing;  of  improper  material  by  owner,  see  McPherson  v. 
San  Joaquin  County,  56  Pac.  Rep.  802. 

Oregon.      Justice  v.   Elwert,   28  Oreg.   460,  43  Pac.   Rep.  649. 

'^^  Gamache  v.  South  School  Dist.,  133  Cal.  145,  149,  65  Pac.  Rep.  301. 
See  McConnell  v.  Corona  City  W.  Co.,  149  Cal.  60,  63,  85  Pac.  Rep.  929. 

Montana.  See  Wortman  v.  Montana  Cent.  R.  Co.,  22  Mont.  266,  56 
Pac.    Rep.    316. 

Washington.  See  Cochran  v.  Yoho,  34  Wash.  238,  75  Pac.  Rep.  815 
(a  subsequent  notice  to  proceed  with  the  work  will  not  relieve  the 
owner  from  liability  for  damages  occasioned  by  wrongfully  stopping 
the  work).  And  see  Olson  v.  Snake  R.  V.  R.  Co.,  22  Wash.  39,  60  Pac. 
Rep.   156;    Anderson  v.  McDonald,   31   Wash.   274,  71  Pac.   Rep.   1037. 

"3  Griffith  v.  Happersberger,  86  Cal.  605,  613,  25  Pac.  Rep.  137,  487; 
Adams   v.    Burbank,    103    Cal.    646,    649,    37    Pac.    Rep.    640. 

Prevention  of  performance:  See  McConnell  v.  Corona  City  W.  Co., 
149  Cal.  60,  64,  85  Pac.  Rep.  929;  Cook  v.  Columbia  O.  A.  &  R.  Co., 
144  Cal.  670,   675,   78   Pac.   Rep.   287. 

Injunction  preventing  performance  is  not  an  excuse  for  non- 
performance, within  §  1511  of  the  Code  of  Civil  Procedure;  Sample  v. 
Fresno  F.  &  I.  Co.,  129  Cal.  222,  61  Pac.  Rep.  1085. 

See  "General  Obligations  of  Original  Contractor,"  §§64,  65,  ante; 
"Obligations  of  Owner,"  §§  523  et  seq.,  post. 


§  339  mechanics'  liens.  270 

a  direction,  authorized  by  the  contract,  that  the  force  of  men 
be  reduced,^*  or  the  non-payment  of  an  instalment,^^  is  not 
such  prevention. 

In  order  to  make  payment  a  condition  precedent,  a  clause 
must  be  inserted  in  the  contract  to  that  effect.^**  Such  failure 
to  make  payments  is  a  substantial  breach  of  the  contract, 
entitling  the  contractor  to  rescind  and  sue  upon  a  quantum 
meruit.^'  But  where  the  contractor  has  not  performed  the 
contract  according  to  its  terms  when  he  demands  such  pay- 
ment of  an  instalment,  then  it  is  not  due,  and  he  is  not 
justified  in  leaving  the  work.^^ 

Colorado.  McGonigle  v.  Klein,  6  Colo.  App.  306,  40  Pac.  Rep.  465; 
Cochran  v.   Balfe,   12   Colo.  App.   75,   54  Pac.  Rep.   399. 

Idaho.  Prevention:  See  Spaulding  v.  Coeur  D'Alene  R.  &  N.  Co., 
5  Idaho  528,  51  Pac.  Rep.  408  (plaintiff  may  recover  on  quantum 
meruit). 

New  Mexico.     Baca  v.  Barrier,  2  N.  M.   131. 

»*  Cox  V.  McLaughlin,   54   Cal.   605,   607. 

"  Cox  V.  McLaughlin,  54  Cal.  605,  607,  s.  c.  76  Cal.  60,  18  Pac.  Rep. 
100,  9  Am.  St.  Rep.  164;  Porter  v.  Arrowhead  R.  Co.,  100  Cal.  500,  501, 
503,  35  Pac.  Rep.  146;  Golden  Gate  L.  Co.  v.  Sahrbacher,  105  Cal.  114, 
116,  38  Pac.  Rep.   635. 

See  "Obligations  of  Owner,"  §§523  et  seq.,  post;  "Evidence,"  §§764 
et  seq. 

Application  of  payments:  See  Hanson  v.  Cordano,  96  Cal.  441,  442, 
31  Pac.  Rep.  457,  and  also  §  254,  ante. 

••«  Cox  V.  McLaughlin,  63  Cal.  196,  205. 

See  "  Complaint,"  §  676,  post. 

Oregon.     See  Justice  v.  Elwert,  28  Oreg.  460,  43  Pac.  Rep    649. 

5'  Porter  v.  Arrowhead  R.  Co.,  100  Cal.  500,  501,  503,  35  Pac.  Rep.  146; 
Golden  Gate  L.  Co.  v.  Sahrbacher,  105  Cal.  114,  116,  38  Pac.  Rep.  635; 
San  Francisco  B.  Co.  v.  Dumbarton  L.  &  I.  Co.,  119  Cal.  272,  274,  51 
Pac.  Rep.  335. 

See  "Complaint,"  §§672  et  seq.,  post. 

Ob.iection  tliat  work  >va.s  not  done  according  to  the  contract  is  not 
a  refusal  to  pay  any  sum  at  all,  under  the  contract:  Flinn  v.  Mowry, 
131    Cal.    481,    486,    63    Pac.    Rep.    724,    1006. 

Montana.  See  Wortman  v.  Montana  Cent.  R.  Co.,  22  Mont.  266,  56 
Pac.  Rep.  316. 

Oregon.  And  where  the  contractor  agreed  that  "  he  will  promptly 
pay,  or  cause  to  be  paid,  for  all  material  "  and  labor,  a  failure  to  do 
so  is  a  breach  of  the  contract:  Thompson  v.  Coffman,  15  Oreg.  631,  16 
Pac.  Rep.  713. 

Itah.     See  Bennett  v.  Shaughnessy,   6  Utah  273,   22  Pac.  Rep.   156. 

Washington.  See  Anderson  v.  McDonald,  31  Wash.  274,  71  Pac.  Rep. 
1037. 

58  Golden  Gate  L.  Co.  v.  Sahrbacher,  105  Cal.  114,-116,  38  Pac.  Rep. 
635.     See  Flinn  v.  Mowry.  131  Cal.  481.  486,   63  Pac.  Rep.   724,   1006. 

Colorado.  Nor  is  he  justified  in  abandoning  the  contract,  simply 
becau.^e  the  owner  demands  the  performance  of  services  not  stipulated 
in  the  contract:  Cochran  v.  Balfe,  12  Colo,  App.  75,  54  Pac.  Rep.  399. 


271  EXTINCTION    OF    CONTRACT.  §  340 

The  fact  that  plaintiff  continued  work  under  the  contract 
after  default  of  defendant  does  not  atfect  the  right  of  the 
plaintiff  to  cease  work  upon  continued  non-payment;  but 
plaintiff  had  a  right  to  rely  for  a  reasonable  time  upon  the 
promises  of  defendant  to  pay ;  and  where  there  appears  to 
have  been  no  difficulty  in  determining  the  amount  due  under 
the  contract,  the  fact  that  the  contract  did  not  expressly  pro- 
vide a  specific  method  of  determining  the  amount  due  at  the 
end  of  each  month  for  the  work  already  performed  is  imma- 
terial; and  where  the  defendant  has  first  broken  the  con- 
tract by  non-payment  of  an  instalment  due  thereunder,  he 
cannot  insist  that  the  plaintiff  shall  go  on  and  complete  the 
contract  within  the  time  specified;  and  there  is  no  material 
error  in  excluding  evidence  to  the  point  that  plaintiff  was 
informed  that  it  was  important  to  construct  a  levee  within 
the  time  specified  in  the  contract.^* 

§  340.  Same.  Performance  of  warranty.  The  statute  *'*' 
providing  that  "  one  who  manufactures  an  article,  under  an 
order,  for  a  particular  purpose,  warrants  by  the  sale  that  it  is 
reasonably  fit  for  that  purpose,"  does  not  apply  where  the 
manufactured  article  is  furnished  under  a  contract  demand- 
ing that  it  be  made  according  to  specific  plans  and  specifica- 
tions; for,  under  such  circumstances,  the  purchaser  selects 
the  article,  and  gets  exactly  what  he  orders,  and,  in  the  ab- 
sence of  an  express  warranty,  assumes  the  risk  following  the 

=»  San  Francisco  B.  Co.  V.  Dumbarton  L.  &  I.  Co.,  119  Cal.  272.  274, 
51    Pac.    Rep.    335. 

Colorado.  Where  a  building  was  to  be  completed  witliin  a  given 
time,  tiie  value  of  the  rental  between  that  time  and  the  time  of 
actual  completion  may  be  recouped,  unless  by  settlement,  intended  to 
be  final,  such  damages  were  waived,  either  expres.sly  or  by  implica- 
tion. Where  the  owner  permits  the  contractor  to  continue  work  after 
the  expiration  of  the  time  in  which  the  work  was  to  be  completed,  he 
waives  the  right  to  rescind  on  that  ground.  But  by  consenting  to  the 
extension,  he  does  not  thereby  waive  sucli  damages  as  he  may  have 
sustained  by  reason  of  the  delay:  Mclntyre  v.  Barnes,  4  Colo.  85. 
See  Cary  v.  Mclntyre,  7  Colo.  177,  2  Pac.  Rep.  916. 

If.  during  the  progress  of  construction,  some  portion  of  the  work 
finished,  or  partially  so,  but  before  the  entire  completion  of  tlie 
building,  should  become  broken,  damaged,  or  be  found  unsuitable,  tlie 
repairing  of  the  same  becomes  a  part  of  the  work  of  construction: 
Cary   li.  Co.   v.  McCarty,   10  Colo.  App.   200.   50  Pac.  Rep.   744. 

"•  See  Kerr's  Cyc.  Civ.  Code,   §  1770,  and  note. 


§  341  mechanics'  liens.  272 

purchase.®^  But  where,  notwithstanding  the  fact  that  cer- 
tain specifications  are  made  part  of  the  contract,  there  is  a 
guaranty  of  the  efficiency',  or  an  express  wam-anty  of  the 
scheme,  as  well  as  an  undertaking  to  do  good  work  in  the 
furnishing  of  the  plant  in  accordance  with  the  scheme,  the 
rule  is  otherwise. *'- 

§  341.  Same.  "  Trifling  imperfection."  In  the  last  clause 
of  section  eleven  hundred  and  eighty-seven,®^  in  recognition 
of  the  general  rule  hereafter  referred  to,  it  is  provided  that 
any  trifling  imperfection  in  the  work,  or  in  the  construction 
of  any  building,  improvement,  or  structure,  or  of  the  altera- 
tion, addition  to,  or  repair  thereof,  shall  not  be  deemed  such 
a  lack  of  completion  as  to  prevent  the  filing  of  any  lien. 

Whether  an  imperfection  in  the  work  for  which  a  lien  is 
sought  is  a  trifling  one  or  not,  is  to  be  determined  from  the 
facts  and  circumstances  of  each  particular  case.  No  fixed  or 
flexible  rule  upon  the  point  can  be  laid  down.*^* 

The  term  "  trifling  imperfection,"  as  used  in  this  section  of 
the  statute,  relates  to  the  question  whether  or  not  there  has 

"  And  so  the  fact  that  the  size  of  a  drum  specified  in  a  contract  to 
construct  an  elevator  proved  to  be  insufficient  is  immaterial:  Ban- 
croft V.  San  Francisco  T.  Co.,  120  Cal.  228,  232,  52  Pac.  Rep.  496. 

See  '■  Construction  of  Contract,"  §§  216  et  seq.,  ante. 

Utah.  See  Utah  L.  Co.  v.  James,  25  Utah  434,  71  Pac.  Rep.  986 
(caveat  emptor). 

''-  Adhere  a  material-inau  agreed  to  furnish  an  iee  plant,  built 
according^  to  certain  speoification.s,  and  guaranteed  its  efficiency,  he  is 
liable  for  its  failure  to  do  the  work,  though  the  specifications  were 
furnished  by  the  purchaser,  and  an  efficient  ice  plant  could  not  be 
constructed  by  following  them:  Bryson  v.  McCone,  121  Cal.  153,  53 
Pac.  Rep.  637,  639;  and  see  Boothe  v.  Squaw  Springs  W.  Co.,  142  Cal. 
573,    577,    76    Pac.    Rep.    385. 

"=   Kerr's   Cyc.   Code  Civ.  Proc,   §  1187. 

"  Scliindler  v.   Green,   149   Cal.   752,   754,   87  Pac.   Rep.   626. 

Trifling  imperfection:  Schindler  v.  Green,  149  Cal.  752,  755,  87  Pac. 
Rep.  626,  reversing,  on  this  point,  s.  c.  (Cal.  App.,  Aug.  14,  1905)  82  Pac. 
Rep.  341,  631  (windows  out  of  alignment,  remedied  at  a  cost  of  $7.50). 

The  neg-lect  to  put  on  a  door-knob,  which  was  mislaid,  and  the 
rim  of  a  bath-tub,  has  been  lield  a  trifling  imperfection:  Joost  v. 
Sullivan,    111   Cal.   286,   292,   43   Pac.   Rep.   896. 

In  tlie  ca.se  of  a  contract  to  excavate  a  cellar,  and  to  erect  walls  of 
concrete  and  steps  to  the  street,  which  was  accepted  by  the  owner 
as  completed,  and  thereafter  a  carpenter,  employed  by  the  owner, 
finished  a  frame  in  the  cellar-door,  and  plaintiff,  at  the  owner's 
request,  filled  a  small  hole  outside  tlie  cellar,  it  was  held  that  the 
lack  of  this  additional  work  was  a  trifling  imperfection,  within  the 
meaning  of  the  section,  and  that  there  was  an  acceptance  of  the  work: 
Lippert   v.   Lazar    (Cal.),   33  Pac.   Rep.   797. 


273  EXTINCTION    OP    CONTRACT.  §  341 

been  an  actual  completion  of  the  building,"^  and  refers  to  im- 
perfect or  defective  performance  of  the  work  upon  a  build- 
ing Avhich  is  claimed  to  have  been  completed,  and  not  to  a 
case  in  which  the  building  is  admittedly  uncompleted,  and 
the  workmen  are  still  engaged  in  constructing  substantial 
portions  thereof.*"'  It  cannot  be  said  as  a  matter  of  law  that 
any  failure  of  completion  is  a  trifling  imperfection."^ 

What  constitutes  a  trifling  imperfection,"*  or  whether  there 
has  been  a  completion,  or  the  contract  has  been  substantially 

Failure  to  inuke  the  ridge  of  the  roof  tight,  or  to  putty  the  window 
g-Iass  on  the  outside,  is  a  defective  performance  of  the  work,  rather 
than  the  failure  to  complete  the  building-,  and  was  considered  a 
"trifling  imperfection":  Santa  Monica  L.  &  M.  Co.  v.  Hege,  119  Cal. 
376,  379,  51  Pac.  Rep.   555. 

Where  some  small  place.*)  in  the  house  are  not  properly  grained 
and  finished,  and  the  cost  of  properly  finishing-  them  would  be  not 
more  than  five  dollars,  this  was  held  a  substantial  performance  of 
the  contract:  Harlan  v.  Stufflebeem,  87  Cal.  508,  512,  25  Pac.  Rep.  686 
(contract   price   $145). 

In  the  case  of  seven  dollar.^'  ^vorth  of  alterations,  where  the  con- 
tract price  is  four  thousand  seven  hundred  dollars,  same  rule  applies; 
Santa  Clara  V.  M.  &  L.  Co.  v.  Williams  (Cal.),  31  Pac.  Rep.  1128.  In 
this  case  the  contractors  did  nothing  after  they  delivered  their  work, 
and  there  was  no  evidence  that  they  did  not  complete  the  house 
according  to  the  directions  and  designs  of  the  owner,  there  being  no 
valid  statutory  original  contract.  But  in  Mclntyre  v.  Trautner,  63 
Cal.  429,  the  owner  refused  to  accept  the  work  from  the  contractor  as 
perfectly  complete,  and  the  owner  completed  the  work,  wliich  con- 
sisted in  stopping  some  leaking  pipes. 

Colorado.  There  may  be  a  substantial  performance,  notwithstand- 
ing the  amount  required  to  remedy  defects  and  omissions  may  be  quite 
substantial:  Charles  v.  Hallack  L.  Co.,  22  Colo.  283,  293,  43  Pac.  Rep. 
548. 

It  is  not  competent  for  mechanics,  by  performing  work  and  trifling 
alterations,  to  extend  the  time  within  which  a  lien  may  be  filed:  Bur- 
leigh B.  Co.  V.  Merchant  B.  &  B.  Co.,  13  Colo.  App.  455.  59  Pac.  Rep.  S3. 

Hawaii.     See  Pacific  H.  Co.  v.  Lincoln,   12  Hawn.   358,   359. 

Washington.  So  an  expenditure  of  thirty  dollars  on  a  bridge  cost- 
ing sixteen  thousand  dollars  :  Washington  Bridge  Co.  v.  L.  &  R.  Im- 
provement Co.,  12  Wash.  272,  40  Pac.  Rep.  982. 

«^  Marble  L.  Co.  v.  Lordsburg  Hotel  Co.,  96  Cal.  332,  336,  31  Pac.  Rep. 
164;  Bianchi  v.  Hughes,  124  Cal.  24,  56  Pac.  Rep.  610;  Schindler  v. 
Green,  149  Cal.  752,  754,  87  Pac.  Rep.  626. 

""  Schindler  v.  Green,  149  Cal.  752,  754,  87  Pac.  Rep.  626;  Santa 
Monica  L.  &  M.  Co.  v.  Hege,  119  Cal.  376,  51  Pac.  Rep.  555. 

"  Willamette  S.  M.  Co.  v.  Kremer,  94  Cal.  205,  208,  29  Pac.  Rep.  633. 

See  "  Questions  of  Fact,"  §  827,  post. 

^  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co.,  94  Cal. 
229,  238;  Marble  L.  Co.  v.  Lordsburg  Hotel  Co.,  96  Cal.  332,  334; 
Willamette  S.  M.  Co.  v.  Kremer,  94  Cal.  205,  208;  Coss  v.  MacDonougp, 
111  Cal.  662,  666;  Santa  Monica  L.  &  M.  Co.  v.  Hege,  119  Cal.  376,  378 
(there  was  no  test  by  which  it  could  be  determined  when  the  building 
was  completed). 

Colorado.     Lichly  v.  Houston  L.  Co.   (Colo.),  88  Pac.  Rep.  846. 
Mech.   Liens  —  18 


§  342  mechanics'  liens.  274 

performed,®^  and  the  time  of  completion,""  are  all  questions 
of  fact,  to  be  determined  from  the  facts  and  circumstances 
of  each  case. 

§  342.     Same.  Substantial  performance  generally  required. 

The  performance  of  a  contract  need  not  in  all  cases  be  literal 
and  exact,  in  order  to  entitle  a  party  to  compensation  there- 
for. Especially  is  this  the  rule  in  contracts  for  labor  by  me- 
chanics or  artisans,  where  the  quality'  of  the  work  done,  or 
the  manner  of  its  performance,  is  the  sole  matter  in  dispute, 
and  is  to  be  decided  upon  conflicting  testimony.  In  contracts 
for  the  construction  or  repair  of  buildings,  a  substantial  per- 
formance of  his  contract  is  sufficient  to  entitle  the  contractor 
to  compensation  for  the  work  done  by  him  under  the  con- 
tract, as  well  as  to  permit  the  filing  of  a  claim  of  lien  there- 
for.^^  If  there  has  been  no  wilful  departure  from  its  provis- 
os Harlan  v.  Stufflebeem,  87  Cal.  508,  512;  Marble  L.  Co.  v.  Lordsburg 
Hotel  Co.,  96  Cal.  332,  334;  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Ang-eles 
College  Co.,  94  Cal.  229,  237. 

■»  Willamette  S.  M.  Co.  v.  Kremer,  94  Cal.  205,  208;  Schallert-Gana.hl 
L.  Co.  V.  Sheldon   (Cal.),  32  Pac.  Rep.  235. 

"  Harlan  v.  Stufflebeem,  87  Cal.  508,  511,  25  Pac.  Rep.  686;  Schindler 
V.  Green,  149  Cal.  752,  754,  87  Pac.  Rep.  626;  Griffith  v.  Happersberger, 
86  Cal.  605,  613,  25  Pac.  Rep.  137,  487;  Stimson  M.  Co.  v.  Riley  (Cal.), 
42  Pac.  Rep.  1072;  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College 
Co.,  94  Cal.  229,  238,  29  Pac.  Rep.  629;  West  Coast  L.  Co.  v.  Apfleld,  86 
Cal.  335,  342,  24  Pac.  Rep.  993.  And  see  Golden  Gate  L.  Co.  v.  Sahr- 
bacher,  105  Cal.  114,  116,  38  Pac. -Rep.  635;  Marchant  v.  Hayes,  117  Cal. 
669,  672,  49  Pac.  Rep.  840. 

See  "Filing  of  Claim,"  §§  416  et  seq.,  post. 

Substantial  performance:  See  Los  Angeles  T.  Co.  v.  Wilshire,  135 
Cal.  654,  659,  67  Pac.  Rep.  1086. 

Substantial  non-performance  as  to  laying  floor:  Laidlaw  v.  Marye, 
133  Cal.  170,  179,  65  Pac.  Rep.  391. 

Substantial  compliance  to  recover:  Laidlaw  v.  Marye,  133  Cal.  170, 
176.  65  Pac.  Rep.  391. 

Montana.  Substantial  performance  as  condition  to  payment:  Rid- 
dell  V.  Peck-Williamson  H.  &  V.  Co.,  27  Mont.  44,  69  Pac.  Rep.  241. 

Failure  to  plaster  a  portion  of  a  house  and  build  a  flue,  held  a  fail- 
ure to  substantially  perform  contract:  Franklin  v.  Schultz,  23  Mont. 
165,  57  Pac.  Rep.  1037. 

Nevada.  Tlie  original  contract  and  modifications  thereof  must  be 
completely  performed,  in  order  to  start  the  time  running  within  which 
to  file  claims  of  lien:  Salt  Lake  H.  Co.  v.  Chainman  M.  &  E.  Co..  137 
Fed.  Rep.  632. 

»w  Mexico.  A  substantial  completion  of  the  building  is  a  comple- 
tion thereof,  within  the  meaning  of  Comp.  Laws  1897.  §  2221,  for  the 
purpose  of  filing  claims  of  lien:  Genest  v.  Las  Vegas  M.  B.  Assoc,  11 
N.  M.  251,  67  Pac.  Rep.  '743  (seven  or  eight  hours'  work  remaining  to 
be  doo';). 


275  EXTINCTIOX    OF    COXTRxVCT.  §  342 

ions,  and  no  omission  of  any  of  its  essential  parts,  and  the 
contractor  has  in  good  faith  performed  all  of  its  substantive 
terms,^-  he  will  not  be  held  to  have  forfeited  his  right  to  a 
recovery  by  reason  of  trivial  defects  or  imperfections  in  the 
work  performed.  If  the  omission  or  imperfection  is  so  slight 
that  it  cannot  be  regarded  as  an  integral  or  substantive  part 
of  the  original  contract,  and  the  other  party  can  be  compen- 
sated therefor  by  a  recoupment  for  damages,  the  contractor 
does  not  lose  his  right  of  action.  This  rule  is  peculiarly  ap- 
plicable in  a  case  where  the  other  party  has  received  the 
benefit  of  what  has  been  done,  and  is  enjoying  the  fruits  of 
the  work;'^^  especially  where  the  failure  of  the  plaintiff  to 
comply  with  the  strict  letter  of  the  contract  was  caused  by 
the  acts  and  consent  of  the  parties.'^* 

Oregon.  Substantial  performance  of  the  contract  sufficient:  Har- 
risburg-  L.  Co.  v.  Washburn,  29  Oreg.  150,  44  Pac.  Rep.  390. 

AVashinston.  Washington  B.  Co.  v.  L.  &  R.  Improvement  Co.,  12 
Wash.  272,  40  Pac.  Rep.  982. 

See  Craig  v.  Geddis,  4  Wash.  390,  30  Pac.  Rep.  396;  Sclimidt  v.  City 
Of  North  Yakima,  12  Wa*sh.  121,  40  Pac.  Rep.   790. 

Trifling  imperfeetjon:  See  Windham  v.  Independent  Tel.  Co.,  35 
Wash.  166,  76  Pac.  Rep.  936  (falling  within  the  principle  of  Schmidt  v. 
North  Yakima,   12  Wash.  121,  40  Pac.  Rep.  790). 

See  §  341,  ante. 

Siib.HtantiuI  failure  to  perform,  neoe.ssary;  otherwise  contractor  not 
liable:    Anderson  v.  Harper,  30  Wash.  378,   70  Pac.  Rep.  965. 

*' Sui>stantial  performance"  and  '^  substantial  failure"  to  perform: 
See  Anderson  v.  Harper,  30  Wash.  378,  70  Pac.  Rep.  96o. 

'-  Good  faith  In  performance:  See  Schindler  v.  Green  (Cal.  App., 
Aug.  14,  1905),  82  Pac.  Rep.  631,  s.  c.  on  rehearing,  149  Cal.  752,  82 
Pac.  Rep.   341. 

"  Schindler  v.  Green,  149  Cal.  752,  754,  755,  87  Pac.  Rep.  626;  Harlan 
V.  Stufflebeem,  87  Cal.  508,  511,  25  Pac.  Rep.  686.  See  Valley  L.  Co.  v. 
Struck,  146  Cal.  266,  273,  80  Pac.  Rep.  405. 

Substantial  performance:    See,   generally,   note  30  Am.   St.   Rep.   616. 

Oregon.  After  a  structure  has  been  completed,  inspected,  and 
approved  by  the  owner  or  his  lawful  agent,  any  latent  defects  existing 
in  the  material  or  workmanship  that  may  be  cured  by  the  builder 
upon  the  request  of  the  owner  are  to  be  considered  as  repairs,  and 
not  omissions  in  the  performance  of  the  original  contract,  and  the 
time  for  filing  the  lien  will  begin  to  run  from  the  date  when  the 
building-  was  accepted,  though  the  rule  may  be  otherwise  where  work 
required  by  the  contract  has  been  omitted.  And  when  work  has  been 
apparently  completed,  but  not  accepted,  the  restoration  by  the  builder 
of  a  part  to  which  objection  has  been  made  is  considered  as  a  sub- 
stitution under  the  *erms  of  the  original  agreement,  and  not  a  repair, 
and  therefore  the  statute  begins  to  run  only  from  tlie  final  completion 
of  the  imperfectly  performed  obligation:  Avery  v.  Butler,  30  Oreg.  287, 
47  Pac.  Rep.  706. 

"  Griffith  v.  Happersberger,  86  Cal.  605,  612,  25  Pac.  Rep.  137,  487. 

Colorado.  Waiver  of  strict  performance:  See  Flick  v.  Hahn's  Peak 
&  E.  R.  C.  &  P.  M.  Co..  16  Colo.  App.  485,  66  Pac.  Rep.  453. 


§  343  mechanics'  liens.  276 

§  343.  Same.  General  principles.'^  The  owner  has  a  right 
to  have  built  the  structure  he  contracted  for,  and  not  an- 
other. Even  his  caprices,  if  expressed  in  the  contract,  must 
be  complied  with,  even  though  they  would  not  have  added  to 
the  value  of  the  structure,  or  may  have  lessened  its  value.  It 
is  only  when  this  plan  has  been  substantially  embodied  in  the 
work  that  the  court  can  have  an  occasion  to  estimate  the  de- 
ficiencies. The  authorities  are  very  clear  upon  this  point. 
There  is  a  variety  of  cases  to  which  the  so-called  modern 
equitable  rule  has  been  applied.  One  is  where  the  contractor 
fails  to  complete  the  structure.  In  such  case  it  is  said,  if  the 
contractor  has  done  or  furnished  anything  of  which  the 
owner  avails  himself,  such  owner  may  be  made  to  pay  the 

Montana.  Intention  to  waive  defects,  when  not  inferred:  See 
Franklin  v.  Schultz,  23  Mont.  165,  57  Pac.  Rep.  1037. 

Oregon.  Or  waived  by  them:  Harrisburg-  L.  Co.  v.  Washburn,  29 
Oreg.  150,  44  Pac.  Rep.  390. 

'^  IHiistrations  of  failure  to  substantially  perform.  W^here,  under 
a  contract  to  repair  an  old  house  and  build  an  addition,  there  was  evi- 
dence that  no  part  of  the  second  coat  of  paiiit  upon  the  new  part,  as 
required  by  the  contract,  had  been  put  on;  that  the  work-bench  of 
the  carpenters,  and  the  paint  for  the  second  coat,  were  in  the  new 
part  at  the  time  of  a  fire,  which  consumed  the  building;  that  two  of 
the  doors  were  not  hung,  no  lock  or  fastenings  on  the  front  door,  and 
no  fastenings  on  the  windows;  that  the  house  had  not  been  delivered 
to  the  owner,  and  the  lower  court  found  that  the  contractor  had  never 
finished  the  building  or  completed  the  house,  and  that  the  owner  had 
never  accepted  it,  —  it  cannot  be  said  that  the  building  was  substan- 
tially completed:    Clark  v.  Collier,  100  Cal.  256,  259,  34  Pac.  Rep.  677. 

As  to  destruction  of  building-  by  tire,  before  completion,  see  2  Am.  & 
Eng.  Ann.  Cas.  689-691,   812. 

AVhere  contractor  used  old,  second-hand  brick  of  poor  quality, 
instead  of  good,  hard  brick,  and  laid  them  in  five  and  six  courses 
instead  of  seven,  and  constructed  only  six  piers  of  brick  laid  in  three 
courses  instead  of  twelve  piers,  and  used  second-class  lumber  instead 
of  the  best  kind,  as  agreed,  it  was  held  not  to  be  a  substantial  compli- 
ance with  the  contract:  Perry  v.  Quackenbush,  105  Cal.  299,  303,  38 
Pac.  Rep.  740. 

Failure  to  use  designated  lath  and  rustic.  A  contract  calling  for 
laths  one  and  a  quarter  inches  wide  is  not  satisfied  by  laths  one  and  a 
half  inches  wide,  and  where  a  contract  calls  for  No.  1  rustic  and  the 
best  quality  of  joist  and  studding,  and  the  contractor  uses  second 
quality  of  joist  and  studding  and  No.  2  rustic,  there  is  a  substantial 
breach  of  the  contract:  Golden  Gate  L.  Co.  v.  Sahrbacher,  105  Cal.  114, 
117,   38  Pac.  Rep.   635. 

Where  neither  the  doors  were  hung,  the  plumbiug  finished,  the 
closets  and  bathroom  completed,  the  ventilators  placed,  nor  the  mold- 
ing put  in.  and  a  number  of  other  things  were  unfinished,  such  things 
are  not  trifling  imperfections,  and  are  necessary  to  be  done  to  com- 
plete the  building-:  Schallert-Ganahl  L.  Co.  v.  Sheldon  (Cal.),  32  Pac. 
Rep.  235    (under  amendment  of   1887  to  §'1187,  Code  Civ.  Proc).     The 


277  EXTINCTION    OF    CONTRACT.  §  343 

value  of  it,  after  deducting  all  damages  resulting  from  the 
failure  of  the  contractor.  In  such  case  it  has  been  sometimes 
said  that  it  does  not  matter  why  the  contractor  failed  to  per- 
form. Another  case  is  where  there  is  a  defect  which  can  be 
remedied.  Here  the  contractor  may  recover  the  contract 
price,  less  damages  caused  by  the  failure,  including  cost  of 
supplying  the  deficiency.  Another  ease  is  where  the  con- 
tractor has  endeavored  in  good  faith  to  perform  his  contract, 
and  has  substantially  performed,  but  there  are  some  unim- 
portant defects,  arising  through  accident  or  inadvertence. 
Here,  the  defects  not  being  such  as  defeat  or  materially 
change  the  design  embodied  in  the  contract,  the  contractor 
may  recover,  less  damages  occasioned  by  the  failure.  In  such 
case  there  must  be  a  substantial  performance  of  every  mate- 
rial covenant  in  the  contract,  and  the  failure  must  not  have 
resulted  from  design  or  bad  faith,  and  whether  these  facts 
exist  is  a  matter  to  be  determined  by  the  jury. 

Since  the  rule  as  to  what  shall  constitute  performance  has 
become  so  indefinite,  it  is  an  important  consideration,  in  de- 
termining whether  there  has  been  a  substantial  performance, 
that  the  deviations  are  so  slight  that  they  might  have  been 
made  by  one  who  was  honestly  endeavoring  to  comply  with 
his  contract.  Good  faith,  however,  on  the  part  of  the  con- 
tractor is  not  enough.  The  owner  has  a  right  to  a  structure 
in  all  essential  particulars  such  as  he  has  contracted  for;  and 
to  authorize  a  court  or  jury  to  find  that  there  has  been  a  sub- 
contract probably  called  for  this  work,  but  it  was  considered  void,  and 
the  court  say:  "  It  may  be  quite  true  that  it  would  not  take  long-  to  do 
what  remained  to  be  done,  and  that  what  remained  to  be  done  was 
trifling-,  compared  with  the  whole  work  of  building-  an  elegant  resi- 
dence; but  it  must  be  obvious  that  if  the  erection  and  completion  of 
the  house  had  been  provided  for  in  a  valid  contract,  the  contractor 
could  not  have  successfully  insisted  on  the  day  the  lien  was  filed  that 
lie  had  complied  with  his  contract,  within  the  meaning  of  any  of  tlie 
qualifications  or  exceptions  contained  in  the  statute."  And  the  court 
further  said:  "It  is  immaterial  whether  the  oxidized  hardware  and 
tiling  were  in  the  written  contract  attempted  to  be  made  with  S.  & 
Son,  or  whether  they  were  to  be  furnished  by  the  owner  or  the  con- 
tractor. If  the  use  of  these  materials  was  necessary  to  the  completion 
of  the  building,  the  purchase  of  them  by  tlie  one  party  or  the  other 
could  not  affect  the  question  whether  the  building  was  completed." 

Colorado.  The  lack  of  completion  of  a  mantel  and  fireplace  re- 
quired by  the  contract  cannot  be  considered  a  trifling  imperfection  or 
omission  from  the  work:  Lichty  v.  Houston  L.  Co.  (Colo.),  88  Pac.  Rep 
846. 


§§  344, 345  mechanics'  liens.  278 

stantial  performance,  it  must  be  found  that  he  has  such  a 
structure.  The  court  cannot  say  that  anything  is  immaterial 
which  the  parties  have  made  material  by  their  contract.  One 
has  the  right  to  determine  for  himself  what  he  deems  a  good 
foundation,  or  what  materials  he  desires  to  be  used,  and  if  he 
contracts  for  them,  neither  the  contractor  nor  the  court  has 
the  right  to  compel  him  to  accept  something  else,  which  may 
be  shown  by  the  witnesses  to  be  just  as  good  or  even  better. 
No  precise  rule  can  or  ought  to  be  laid  down  upon  this  sub- 
ject, but  whenever  such  a  case  arises,  courts  and  juries 
should  see  to  it  that  the  design  of  the  owner  shall  not  be  de- 
feated in  any  important  respect. '^^  • 

§  344.  Same.  Slight  difference  in  value.  Although  the 
difference  between  the  value  of  the  house  as  actually'  con- 
structed and  as  it  should  have  been  constructed  is  only  a 
small  amount,  this  fact  alone  does  not  show  that  the  contract 
has  been  substantially  performed.''"  Thus  the  marble  steps 
by  which  the  basement  of  a  building  was  to  be  reached  was 
held  to  be  a  substantial  portion  of  the  building,  rather  than  a 
trivial  imperfection,  even  though  its  cost  was  small  in  com- 
parison with  the  cost  of  the  entire  building.^* 

§  345.  Same.  Conveniences.  The  conveniences  called  for 
in  plans  and  specifications  may  be  a  material  part  of  the 
building,  and  when  so  provided  for,  the  building  is  not  com- 
pleted until  the  demands  of  the  plans  and  specifications  in 
this  regard  have  been  legally  satisfied.  So  where  an  elevator 
is  called  for  by  the  original  plans  and  specifications,  and  the 
contract  is  let  for  its  construction  at  the  same  time  that  other 


"  Substantially  in  the  language  of  the  court  in  Perry  v.  Quacken- 
bush,  105  Cal.  299,  307,  310,  38  Pac.  Rep.  740.  See  Marehant  v.  Hayes, 
117  Cal.  669,  672,  49  Pac.  Rep.  480.  See  Carpenter  v.  Ibbetson,  1  cal. 
App.  272,  274,  81  Pac.  Rep.  1114. 

Idaho.  Prospective  profits  as  damages:  See  Harris  v.  Farls-Kesl 
Const.  Co.,  89  Pac.  Rep.  760. 

Washington.  Measure  of  damages  on  prevention  by  owner:  See 
Chase  v.  Smith,  35  T\'ash.  631,  77  Pac.  Rep.  1069;  and  also  Anderson  v. 
Hilker,  38  Wash.  632.  80  Pac.  Rep.  848. 

"  Perry  v.  Quackenbush,  105  Cal.  299,  307,  38  Pac.  Rep.  740;  Bianchl 
V.  Hughes,  124  Cal.  24,  56  Pac.  Rep.  610. 

"  Bianchi  v.  Hughes,   124  Cal.   24,  56  Pac  Rep.   610. 


■ 


279  EXTINCTION    OF    CONTRACT.  §§  346-348 

contracts  are  let,  and  it  is  attached  to  the  building,  and  forms 
an  integral  part  thereof,  the  building  is  not  completed  until 
the  elevator  is  constructed,  and  the  fact  that  the  building 
might  be  used  without  it,  and  that  it  is  a  convenience  merely, 
is  immaterial/® 

§  346.     Same.     Erection  of  structure  in  part   only.     A 

building  which  is  erected  in  part  only  will  be  held  completed, 
for  the  purpose  of  filing  liens,  as  provided  in  the  statute,^" 
when  it  distinctly  appears  that  the  original  purpose  of  the 
owner  to  erect  and  build  it  in  part  only,  or  that  the  owner, 
having  proceeded  to  erect  the  house  in  part,  abandoned  his 
design  of  finishing  it.^^ 

§  347.  Same.  "  Completion  "  of  mining  claim.  It  is  evi- 
dent that  work  upon  a  mine  is  continuous  in  its  nature,  and 
has  no  definite  completion,  but  may  run  on  for  fifty  years  or 
more.  The  statute,  therefore,  cannot  have  reference  to  the 
work  upon  a  mine  as  a  thing  to  be  completed.  To  hold  other- 
wise would,  in  effect,  be  saying  that  the  legislature  was 
guilty  of  the  absurdity  of  referring  to  the  completion  of  a 
thing  which  has  no  necessary  completion,  but  may  go  on 
indefinitely.^^ 

§  348.  Statutory  equivalents  of  completion  for  the  pur- 
pose of  filing  claims  of  lien.  Independently  of  the  question 
of  actual  completion,  discussed  in  the  preceding  sections,  the 

'9  Coss  V.  MacDonough,  111  Cal.  662,  666,  44  Pac.  Rep.  325.  See 
Schallert-Ganahl  L.  Co.  v.  Sheldon   (Cal.),  32  Pac.  Rep.  235. 

*»  Kerr's  Cyc.  Code  Civ.  Proc,  §  1187. 

»i  Schwartz  v.  Knight,  74  Cal.  432,  434,  16  Pac.  Rep.  235;  Marchant 
V.  Hayes,  120  Cal.  137,  138,  49  Pac.  Rep.  840. 

"  California  Powder  Works  v.  Blue  Tent  Consol.  H.  G.  Mines  (Cal.). 
22  Pac.  Rep.  391. 

Use  of  material  or  suspension  of  work  on  mine,  it  seems,  is  not  to 
be  treated  as  the  completion  referred  to  in  Kerr's  Cyc.  Code  Civ.  Proc, 
§1187:  California  Powder  Works  v.  Blue  Tent  Consol.  H.  G.  Mines, 
supra. 

"Tlie  liens  cannot  all  date  back  to  the  commencement  of  the  work. 
On  a  mine  the  work  is  always  going  on,  and  may  have  commenced 
before  the  laborers  were  born,  and  may  continue  indefinitely":  Wil- 
liams V.  Mountaineer  G.  M.  Co.,  102  Cal.  134,  139,  34  Pac.  Rep.  702,  36 
Pac.   Rep.   388. 

See   "Nature  of   Work,"   S§  ISO   et  seq.,  ante. 


§§349,350  mechanics'  liens.  280 

statute, ^^^  for  certain  purposes  hereafter  considered  in  detail, 
provides  for  certain  equivalents  of  such  completion.  Such 
statutory  equivalents  may  be  summarized  as:  1.  Occupation, 
or  use  of  the  objects  enumerated;  2.  Acceptance  thereof  as 
completed;  3.  Cessation  from  labor,  (a)  upon  the  contract, 
or  (b)  upon  the  object,  for  the  statutory  period. 

§  349.  Same.  Statutory  provisions.  The  mechanic's-lien 
law  ^^  provides :  "  And  in  all  cases  the  occupation  or  use  of  a 
building,  improvement,  or  structure,  by  the  owner,  or  his 
representative,  or  the  acceptance  by  said  owner  or  his  agent, 
of  said  building,  improvement,  or  structure,  and  cessation 
from  labor  for  thirty  days  upon  any  contract  or  upon  any 
building,  improvement,  or  structure,  or  the  alteration,  addi- 
tion to,  or  repair  thereof,  shall  be  deemed  equivalent  to  a 
completion  thereof  for  all  the  purposes  of  this  chapter."  ^^ 

§  350,  Same.  Occupation  and  use.  Scope  and  object  of 
statutory  provisions.  The  provision  as  to  use,  occupation, 
and  acceptance,  mentioned  in  the  preceding  section,  has  ref- 
erence not  only  to  a  dwelling  or  other  house,  but  to  any  kind 
of  building  or  improvement.  It  seems  that  when  the  prop- 
erty is  used  and  occupied  so  far  as  it  is  capable  of  being  so 
used  and  occupied,  it  is  sufficient,  within  the  meaning  of  the 

«>  Kerr's  Cyo.  Code  Civ.  Proc,  §  1187. 

"  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1187. 

*^  Previous  to  the  amendiiient  of  1897  making'  the  provision  as  to 
use,  occupation,  or  acceptance  applicable  "  in  all  cases,"  the  section 
provided  for  this  rule  "in  case  of  contracts";  and  under  that  pro- 
vision it  was  held  not  to  apply  to  void  contracts,  but  only  to  valid 
statutory  original  contracts:  Marble  L.  Co.  v.  Lordsburg  Hotel  Co.,  96 
Cal.  332,  338,  31  Pac.  Rep.  164;  Willamette  S.  M.  L.  &  M.  Co.  v.  Los 
Angeles  College  Co.,  94  Cal.  229,  240,  29  Pac.  Rep.  629;  Giant  Powder 
Co.  V.  San  Diego  F.  Co.,  97  Cal.  263,  265,  32  Pac.  Rep.  172.  But  see 
Joost  V.  Sullivan,  111  Cal.  286,  292,  43  Pac.  Rep.  896;  Giant  Powder  Co. 
V.  San  Diego  F.  Co.,  78  Cal.  193,  195,  20  Pac.  Rep.  419. 

Tliis  section,  as  aiuended  in  1887,  made  such  occupation,  use,  and 
acceptance  "conclusive  evidence"  of  completion:  Giant  Powder  Co.  v. 
San   Diego  F.  Co.,   78  Cal.   193,   195,   20  Pac.   Rep.   419. 

Tlie  amendment  of  1897  makes  either  of  them  "  equivalent  "  to  com- 
pletion. See  "Evidence,"  §§792  et  seq.,  post;  "Filing  Claims,"  §§416 
et  seq.,  post. 

As  to  cessation  from  labor,  the  amendment  of  1897  struck  out  the 
word  "unfinished"  before  "contract"  and  "building,"  and  thus 
broadened  the  provision. 


I 


281  EXTINCTION    OP    CONTRACT.  §  351 

statute.     This  provision  was  enacted  in  the  interest  of,  and 
for  the  better  protection  of,  lien  claimants."*" 

One  object  of  the  provision  is  apparent ;  namely,  that  the 
owner  and  the  contractor  shall  not,  by  a  secret  agreement 
between  themselves,  abandon  the  original  contract  before  its 
completion,  or  dispense  with  the  completion  of  the  building 
according  to  its  original  plan,  and  thereby,  by  being  able  to 
show  that  the  building  has  never  been  in  fact  completed,  pre- 
vent the  laborer  and  material-man  from  enforcing  their 
liens. *^ 

Another  reason  for  the  provision  is  found  in  the  require- 
ment —  which  fully  protects  the  owner  ■ —  that  the  owner 
shall  retain  twenty-five  per  cent  of  the  contract  price  until 
the  expiration  of  thirty-five  days,  as  fixed  in  the  contract, 
after  its  completion ;  and  in  order  that  the  thirty  days  within 
which  persons  other  than  the  contractor  may  file  their  claims 
of  lien  may  commence  with  the  thirty-five  days,  it  was  pro- 
vided that  his  occupancy  and  use  of  the  building  should  be 
conclusive  evidence,  before  the  amendment  of  1897,  of,  and 
thereafter  equivalent  to,  such  completion.  Such  occupancy 
or  use  would,  moreover,  be  as  notorious  a  fact  as,  and  be 
more  readily  established  by  the  claimant  than,  the  fact  of 
actual  completion. ^^ 

§  351,  Same.  Character  of  occupation  or  use.  The  occu- 
pation or  use,  however,  which,  under  the  statute,  is  to  be 
deemed  "  equivalent  to  "  completion,  under  the  amendment 
of  1897,  must  be  open,  notorious,  and  exclusive,  and  not  of 
such  a  character  as  would  be  consistent  with  the  continuance 
by  the  contractor  in  the  completion  of  his  contract,  and 
whether  in  any  particular  case  there  has  been  such  a  comple- 
tion or  use  must  be  determined  from  the  facts  of  the  case,  as 

««  Giant  Powder  Co.  v.  San  Diego  F.  Co.,  88  Cal.  20,  23,  25  Pac.  Rep. 
976.     See  "Evidence,"   S§  792  et  seq.,   post. 

"  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Ang-ele.s  College  Co.,  94  Cal. 
229.   239,   29  Pac.  Rep.  629. 

»■•*  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co.,  94  Cal. 
229,   239.   29  Pac.  Rep.  629. 

The  amendment  of  1897  to  §  1187,  requiring  the  owner  to  file  a 
notice  of  completion,  also  partially  remedied  this  difficulty.  See 
"Filing  Lien,"  §§416  et  seq.,  post;  "Notice  of  Completion,"  §§425  et 
seq.,  post;   "  Cessation  from  Labor,"  §§  354   et  seq.,   post. 


§  352  mechanics'  liens. 


282 


in  the  ordinary  case  must  be  determined  the  fact  of  actual 
completion.  The  owner  must  be  shown  to  have  acted  towards 
the  contractor  and  in  reference  to  the  building  in  such  way 
as,  by  necessary  implication,  to  give  notice  that  the  building 
had  been  accepted  by  him  in  satisfaction  of  the  contract.*® 
The  continuance  by  the  contractor  in  the  work  of  completing 
his  contract,  while  the  building,  or  a  portion  thereof,  is  occu- 
pied by  the  owner,  or  used  by  him  for  the  purposes  for  which 
it  was  intended,  prevents  such  occupation  or  use  from  being 
regarded  as  conclusive  evidence  of  completion.®" 

§  352.  Same.  Void  contract.  Since  the  amendment  of 
section  eleven  hundred  and  eighty-seven,^^  above  referred 
to,®2  there  is  no  distinction  between  valid  and  void  contracts 
with  respect  to  such  occupation,  use,  and  acceptance.®^  And 
although  the  statutory  original  contract  may  be  void,  the 
occupation  of  the  building  by  the  owner  furnishes  a  test  of 
completion  of  the  work  as  against  a  claimant  of  a  lien,  when 
not  explained,  and  is  the  equivalent  of  completion  as  against 
the  owner,  when  necessary  to  sustain  a  lien  filed  upon  the 
strength  of  the  occupancy.®*  But  the  occupation  of  a  struc- 
ture, under  a  void  contract,  is  not  conclusive  upon  the  ques- 
tion of  completion.®^  "When  the  statutory  original  contract 
was  void,  even  before  the  amendment  of  1897,  an  acceptance 
by  the  owner  of  the  building  as  finished,  under  an  agreement 
with  the  contractor  and  architect,  and  the  taking  possession 

89  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co.,  94  Cal. 
229,  239,  29  Pac.  Rep.  629. 

Acceptance  by  occupation  of  tenants:  See  W^yman  v.  Hooker,  2  Cal. 
App.  36,  39,  83  Pac.  Rep.  79. 

AVa.shington.  Acceptance  by  occupancy:  See  W'indham  v.  Inde- 
pendent Tel.  Co.,  3.5  Wash.  166,  76  Pac.  Rep.  936. 

Payment  in  full  and  occupancy  of  hou.se,  held  not  to  be  an  accept- 
ance of  the  work,  under  the  circumstances  of  the  case:  Ekstrand  v. 
Barth,  41  Wash.  321,  83  Pac.  Rep.  305. 

»»  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co.,  94  Cal. 
229,  239,  29  Pac.  Rep.  629  (dictum);  before  amendment  of  1897. 

»i  Kerr's  Cyc.  Code  Civ.  Proc,  §  1187. 

»*  See  note,   §  349,  ante. 

»3  See  note,  §  349,  ante. 

M  Joost  V.  Sullivan,  111  Cal.  286,  292,  43  Pac.  Rep.  896,  decided  when 
S  1187  provided  that  such  occupation,  use,  and  acceptance  shoud  be 
conclusive  evidence  against  the  owner.     See  note  85,   this  chapter. 

»'  Stimson  M.  Co.  v.  Los"  Angeles  T.  Co.,  141  Cal.  30,  32.  74  Pac.  Rep. 
357. 


■ 


283  EXTINCTION    OF    CONTRACT.  §  353 

thereof,  were  not  conclusive  evidence  of  completion  for  the 
purpose  of  filing  liens.^" 

§  353.  Same.  Acceptance.  Waiver.  It  has  been  seen 
that  strict  performance  may  be  waived,  or  excused,  inde- 
pendently of  the  statute.**^  The  owner  may  w^aive  compli- 
ance with  conditions  of  the  contract,  such  as  the  acceptance 
of  the  building  by  the  architect  before  payment  provided  in 
the  contract,  and  the  exhibition  of  receipted  bills  and  proof 
of  non-existence  of  liens.^* 

Where  owner  consents  to  abandonment  or  rescission  of  the 
contract  by  the  contractor  before  its  completion,  and  he 
takes  possession  of  the  work  and  completes  it,  he  "  occupies, 
uses,  and  accepts  "  it,  within  the  meaning  of  section  eleven 
hundred  and  eighty-seven,''^^  for  the  purpose  of  filing  liens.' °° 
And  such  acceptance  and  occupation  is  such  a  completion  for 
the  purpose  of  filing  liens,  whatever  may  be  the  actual  condi- 
tion of  the  structure  when  work  thereon  ceased."^ 

^  Stimson  M.  Co.  v.  Los  Angeles  T.  Co.,  141  Cal.  30,  32,  74  Pac.  Rep. 
357. 

"  See  Marchant  v.  Hayes,  117  Cal.  6.69,  672,  49  Pac.  Rep.  840;  Perry 
V.  Quackenbush,  105  Cal.  299,  307,  38  Pac.  Rep.  740. 

See  §  339,  ante. 

""  Castagnino  v.  Balletta,  82  Cal.  250,  261,  23  Pac.  Rep.  127. 

««  Kerr's  Cyc.  Code  Civ.  Proc,  §  1187,  and  note. 

1™  Giant  Powder  Co.  v.  San  Diego  F.  Co.,  88  Cal.  20,  25,  25  Pac.  Rep. 
976.  See  Marble  L.  Co.  v.  Lordsburg  Hotel  Co.,  96  Cal.  332,  335.  31  Pac. 
Rep.  164   (void  contract;    before  amendment  of  1897). 

See  §  350,  ante. 

"•  Giant  Powder  Co.  v.  San  Diego  F.  Co.,  78  Cal.  193,  196,  20  Pac. 
Rep.  419. 

But  as  to  acceptance  by  agent  being  conclusive  in  absence  of  fraud 
or  mistake,   see  Moore  v.  Kerr,   65  Cal.   519,   4  Pac.  Rep.  542. 

See  §  350,  ante. 

AMien  all  the  lumber  is  used,  and  only  a  few  feet  more  are  required 
to  complete  the  work,  and  the  owner  informed  his  laborer,  who  was 
working  by  the  day,  that  there  was  no  more  work  for  him  to  do,  and 
that  he  would  put  in  the  remainder  of  the  boards  in  the  rear  of  the 
house,  along  the  base  below  the  floor,  and  there  was  about  half  a  day's 
work  to  finish  the  painting,  which  was  being  done  by  tlie  owner,  and 
the  laborer  was  thus  discharged  when  the  work  was  on  the  verge  of 
full  and  actual  completion,  such  discharge,  under  the  circumstances, 
was  an  acceptance  of  the  work  as  a  completed  contract  for  the  erec- 
tion of  the  building  for  the  purpose  of  filing  the  lien:  Ward  v.  Crane, 
118  Cal.  676,  50  Pac.  Rep.  839.  See  Lippert  v.  Lazar  (Cal.),  33  Pac.  Rep. 
797;  Mclntyre  v.  Trautner,  63  Cal.  429,  430  (before  amendment  of  1887. 
where  it  was  held  that  additional  work  done  at  the  request  of  the 
owner  of  the  building  will  he  held  to  be  a  continuation  of  the  work, 
and  done  under  the  same  original  contract). 
See  '•  Extra  Work,"  §§  243  et  seq.,  ante. 


§  354  mechanics'  liens.  284 

§  354.  Same.  Cessation  from  labor  for  thirty  days.  Stat- 
utory provision.  The  statute  ^°-  provides :  "  And  cessation 
from  labor  for  thirty  days  upon  any  contract  or  upon  any 

Use  by  the  owner  of  a  temporary  structure  for  the  lunning  of  trains 
did  not,  under  the  circumstances  of  the  case,  furnisli  any  evidence  of 
the  acceptance  of  a  bridge  as  completed,  the  contract  providing  for 
the  erection  of  sucli  temporary  structure:  Stimson  M.  Co.  v.  Los 
Ang-eles  T.  Co.,  141  Cal.  30,  32,  74  Pac.  Rep.  357. 

Acceptance  of  performance  as  to  construction  of  ditch:  See  Gilliam 
V.  Brown,  116  Cal.  454,  48  Pac.  Rep.  486. 

Montana.  Mere  occupancy  of  the  building-  is  not  a  vi^aiver  of 
defects,  nor  an  acceptance,  where  acceptance  is  refused,  as  the  owner 
is  always  in  possession:  Franklin  v.  Schultz,  23  Mont.  165,  57  Pac.  Rep. 
1037   (suit  on  express  contract). 

Oregon.  Additional  work:  See  Avery  v.  Butler,  30  Oreg.  287,  47 
Pac.  Rep.  706. 

Delivery  of  keys  to  owner  and  his  going'  into  possession,  with  the 
agreement  that  he  accepted  the  building,  excepting  certain  alterations 
then  agreed  upon,  which  the  contractor  thereafter  performed  to  the 
satisfaction  of  the  architect,  constitute,  under  the  circumstances  of  the 
case,  an  acceptance  of  the  work  up  to  the  list  of  alterations,  and  when 
such  alterations  were  completed,  it  was  a  full  acceptance  of  the 
building:  Vanderhoof  v.  Shell,  42  Oreg.  578,  72  Pac.  Rep.  126,  128. 

Utah.  The  mere  acceptance  of  the  building  does  not  preclude  the 
owner  from  showing  that  material  was  not  furnished  according  to  the 
agreement,  when  the  defects  were  latent  and  appeared  as  seasoning 
progressed:  Utah  L.  Co.  v.  James,  25  Utah  434,  71  Pac.  Rep.  986. 

">2  Kerr's  Cyc.  Code  Civ.  Proc,  §  1187  (as  amended  Stats.  1897, 
p.   202). 

The  pi'ovision  as  to  cessation  was  first  inserted  in  the  section  by  the 
amendment  of  1887,  and  applied  to  "any  unfinished  contract"  or  "any 
unfinished  building,"  etc.  It  had  been  previously  said  by  the  court: 
"  The  owner  of  property  on  which  a  building  has  been  commenced 
cannot  deprive  the  material-man  or  laborer  of  his  lien  by  refusing  or 
omitting  to  finish  the  building.  In  Harmon  v.  Ashmead,  68  Cal.  321, 
322,  9  Pac.  Rep.  183,  the  complaint  alleged  that  at  the  date  of  the 
commencement  of  the  action  the  building  had  not  been  completed: 
that  the  defendant  did  not  intend  to  complete  it;  and  that  he  had 
notified  the  plaintiffs  to  that  effect.  The  lien  was  decreed.  The  ques- 
tion is  but  incidentally  referred  to,  but  was  included  in  the  judgment 
recognizing  and  enforcing  the  lien  of  a  material-man,  in  Germania  v. 
Wagner,  61  Cal.  349.  In  that  case,  the  building  was  not  completed, 
'but  work  thereon  ceased  July  16,  1881,  and  has  never  been  resumed  '  ": 
Schwartz  v.  Knight,  74  Cal.  432,  434,  16  Pac.  Rep.  235,  decided  De- 
cember 28,  1887,  and  relating  to  work  done  before  the  amendment  of 
1887,  which  went  into  effect  March  15,  1887.  There  was  no  reference 
to  the  amendment  in  the  decision.  See  Marchant  v.  Hayes,  120  Cal. 
137,  138,  49  Pac.  Rep.  840,  which  also  does  not  seem  to  notice  the  fact 
of  the  amendment,  but  follows  the  language  of  Schwartz  v.  Knight, 
supra. 

See  "Abandonment,"  §§358-360,  post. 

Cessation  of  worlt  for  thirty  days:  See  McDonald  v.  Hayes,  132  Cal. 
490.   495,    64   Pac.   Rep.   850. 

Colorado.  Cessation  of  labor  on  an  unfinislied  building  is  equiva- 
lent to  a  completion  for  the  purpose  of  filing  claims,  under  act  of  1893, 
§  3:  Burleigh  B.  Co.  v.  Merchant  B.  &  B.  Co.,  13  Colo.  App.  455,  59  Pac. 
Rep.  83,  86. 


285  EXTINCTION    OF    CONTRACT.  §  355 

building,  improvemeut,  or  structure,  or  the  alteration,  addi- 
tion to,  or  repair  thereof,  shall  be  deemed  equivalent  to  a 
completion  thereof  for  all  the  purposes  of  this  chapter." 

§  355.  Same.  Scope  of  provision.  The  statute  makes  ces- 
sation from  labor  for  thirty  days  upon,  1.  Any  "  contract,"  ^"^ 
as  well  as  upon,  2.  "  Any  building,  improvement,  or  struc- 
ture, or  the  alteration,  addition  to,  or  repair  thereof,"  ^°*  — 
equivalent  to  the  completion  thereof,  for  all  who  are  entitled 
to  liens,  as  though  the  building  were  actually  completed. 

Cessation  from  work.  Running  of  statute.  While  the 
broad  language  of  the  section  is  to  the  effect  that  cessation 
from  work  for  thirty  days  shall  be  deemed  equivalent  to  a 
completion  thereof  for  all  the  purposes  of  the  chapter  on 
mechanics'  liens,  it  is  only  a  completion  for  the  purpose  of 
setting  the  time  running  within  which  to  file  claims  of  lien. 
It  is  not  a  completion  of  the  structure  or  of  the  contract,  as 
between  the  owner  and  the  contractor,  so  that  under  a  valid 
contract  the  owner  would  be  liable  to  subclaimants  as  upon 
the  completed  contract  and  for  the  whole  contract  price. 
Such  a  construction  of  the  law  would  work  a  monstrous  in- 
justice to  the  owner  who  had  in  all  respects  complied  with 
the  requirements  of  the  law  and  of  his  contract,  and  who, 
notwithstanding  such  compliance,  would  be  at  the  mercy  of 
a  defaulting  contractor,  who  could  thus  pocket  the  partial 
payments  specified  in  the  contract,  and,  without  paying  for 
the  material  purchased  and  used  in  earning  the  instalments 
paid,  enable  the  material-man  who  had  contracted  with  him 
to  be  paid  out  of  the  instalments,  to  enforce  payment  from 
the    owner,    with    whom    he    had    no    contractual    relation. 

"3  Johnson  v.  La  Grave,  102  Cal.  324,  326,  36  Pac,  Rep.  651;  Willam- 
ette S.  M.  L.  &  M.  Co.  V.  Los  Angeles  College  Co.,  94  Cal.  229,  238,  29 
Pac.  Rep.   629. 

101  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co.,  supra; 
Reed  v.  Norton,  90  Cal.  590,  600,  34  Pac.  Rep.  333;  Kerckhoff-Cuzner  M. 
<SL  L.  Co.  V.  Olmstead,  85  Cal.  80,  84,  24  Pac.  Rep.  648;  Marble  L.  Co.  v. 
Lordsburg  Hotel  Co.,  96  Cal.  332,  31  Pac.  Rep.  164;  Johnson  v.  La 
Grave,  102  Cal.  324,  326,  36  Pac.  Rep.  651;  Marchant  v.  Hayes,  120 
Cal.  137,  138,  49  Pac.  Rep    840. 

The  question  of  "  triflinti:  linnerfeetion  "  is  proba,bly  immaterial 
when  tlie  issue  is  as  to  cessation  from  work:  Marble  L.  Co.  v.  Lords- 
burg Hotel  Co.,  96  Cal.  332,  336.  31  Pac.  Rep.  164.     See  §  349,  ante. 

See  "Liability  of  Owner,"  §§  523  et  seq.,  post;  "Filing  Claim,"  §§  416 
et  seq.,  post. 


§  356  mechanics'  liens.  286 

There  is  no  such  statutory  completion  for  such  purpose. 
There  are  several  cases  in  the  California  reports  where  cessa- 
tion of  the  work  for  thirty  days  is  spoken  of  as  a  "  comple- 
tion." But  this  language  is  generally  used  in  reference  to  the 
time  within  Avhich  claims  of  lien  shall  be  filed.  It  is  quite 
true  that  where  claims  of  lien  are  filed  because  of  a  cessation 
of  labor  for  thirty  days,  a  suit  may  be  maintained  to  fore- 
close the  lieu.  But  the  statute  plainly  distinguishes  between 
actual  completion,  and  those  cases  where  the  contractor  fails 
to  perform  his  contract  fully,  or  abandons  the  contract  after 
part  performance  or  before  completion,  so  far  as  the  rights 
of  the  subcontractor  and  the  owner  are  concerned.^*^^ 

§  356.  Same.  Character  of  cessation.  The  words  of  the 
clause  of  the  statute  as  to  cessation  from  labor  do  not  mean 
a,  mere  clandestine  stopping  of  actual  work  for  thirty  days, 
and  then  beginning  it  again  without  any  indicia  to  the  world 
that  it  had  been  stopped  for  thirty  days.  They  were  not  con- 
trived as  a  means  of  defrauding  lien-holders.  The  cessation 
should  certainly  be  of  such  character  as  to  carry  some  charge 
of  notice  to  a  careful  person.  It  has  been  said  that  whatever 
may  be  thought  of  the  hardships  which  the  present  lien  law 
sometimes  imposes  upon  the  owners  of  buildings,  still,  courts 
cannot  undertake  to  break  its  force  by  refusing  to  apply  to 
the  rights  of  lien  claimants  the  ordinary  rules  of  evidence 
and  the  common  principles  of  fair  dealing.^"*'   And  whether 

i«5  McDonald  v.  Hayes,  132  Cal.  490,  495,  64  Pac.  Rep.  850.  See  Perry 
V.  Quackenbush,  105  Cal.   299,  304,  38  Pac.  Rep.  740. 

The  words,  "shall  be  deemed  equivalent  to  a  coinpletion,"  mean 
shall  be  equal,  in  legal  effect,  to  a  completion;  that  is,  shall  be  treated, 
for  the  purpose  of  filing  a  claim  of  lien,  as  an  actual  completion: 
Kerckhoff-Cuzner  M.  &  L.  Co.  v.  Olmstead,  85  Cal.  80,  84,  24  Pac.  Rep. 

648. 

"«  Marble  L.  Co.  v.  Lordsburg  Hotel  Co.,  96  Cal.  332,  337,  338,  31  Pac. 
Rep.  164. 

Where  the  claimant  had  notice  of  such  cessation  of  labor  upon  the 
building  for  thirty  days,  it  is  a  completion,  as  to  him,  for  the  purpose 
ot  filing  his  claim  of  lien:  Kerckhoff-Cuzner  M.  &  L.  Co.  v.  Olmstead, 
85  Cal.  80,  82,  24  Pac.  Rep.  648;  Marble  L.  Co.  v.  Lordsburg  Hotel  Co., 
96  Cal.  332,  337,  338,  31  Pac.  Rep.  164. 

When,  so  far  as  appearances  indicate  to  the  claimant  or  to  the 
world,  the  owner  did  not  allow  thirty  days  to  go  by  at  any  one  time 
without  doing  some  work,  and  there  is  no  reasonable  ground  for  sus- 
pecting so,  the  building  will  not  be  considered  completed  for  the  pur- 
pose of  filing  liens:  Marble  L.  Co.  v.  Lordsburg  Hotel  Co.,  96  Cal.  332, 
337,  338,  31  Pac.  Rep.  164. 


287  EXTINCTION    OF    CONTRACT.  §  357 

there  was  such  a  cessation  as  is  contemplated  by  the  statute 
is  a  question  of  fact.^°'^ 

§357.  Same.  As  affected  by  validity  or  invalidity  of 
original  contract.  The  validity  or  invalidity  of  the  original 
contract  seems  to  be  of  great  importance  in  respect  to  the 
time  of  filing  the  claim  after  cessation  from  work.  Where 
the  contract  is  valid,  and  the  contractor  gave  to  the  owner 
written  notice  that  he  abandoned  the  contract,  and  that  he 
declined  to  proceed  further  in  its  execution,  and  thereafter 
did  no  work  upon  the  building,  whereupon  the  owner  con- 
tracted with  another  builder  to  complete  the  construction  of 
the  building,  a  cessation  for  thirty  days  upon  the  first  con- 
tract is  a  statutory  completion  for  the  purpose  of  filing 
liens.^°^ 

The  "  contract "  which  is  here  referred  to  is  the  one  be- 
tween the  owner  and  him  who  is  termed  the  "  original  con- 
tractor," under  and  subject  to  the  terms  of  which  subclaim- 
ants  must  enforce  their  liens. ^"^ 

If  the  original  contract  is  valid,  a  cessation  for  thirty  days 
from  labor  upon  such  contract  is  a  statutory  completion  for 
the  purpose  of  filing  liens,  whether  work  is  resumed  under 
some  other  contract,  or  by  the  owner  himself,  before  or  after 
thirty  days  from  the  beginning  of  such  cessation.^^° 

Colorado.  Any  labor  performed  before  the  building  is  actually 
completed,  and  which  is  in  furtherance  of  its  completion,  whatever  its 
character,  would  prevent  such  a  "cessation"  of  labor  for  thirty  days 
as  would  enable  claimants  to  file  claims,  under  §  2876,  Mills's  Ann. 
Stats.:  Joralmon  v.  :McPhee,  31  Colo.  26,  sub  nom.  Joralman  v.  McPhee, 
71  Pac.  Rep.  419. 

"'  Marble  L.  Co.  v.  Lordsburg  Hotel  Co.,  96  Cal.  332,  337,  31  Pac. 
Rep.  164. 

"s  Johnson  v.  La  Grave,  102  Cal.  324,  326,  36  Pac.  Rep.  651. 

Colorado.  Where  the  time  for  the  filing  of  a  lien  begins  to  run 
from  the  completion  of  the  building,  the  lien  may  be  filed  at  any  time 
within  the  period  after  the  completion  of  the  building,  even  though 
the  principal  contractor  had  contracted  to  do  only  a  part  of  the  work 
upon  the  building,  and  the  statute  gives  the  claimant  two  months 
after  the  completion  of  improvement  in  which  to  file  his  statement, 
not  two  months  from  the  completion  of  the  contract  under  which  he 
furnished  the  materials:  Lichty  v.  Houston  L.  Co.  (Colo.),  88  Pac. 
Rep.  846  (under  Laws  1899,  ch.  cxviii,  §9,  p.  271;  the  work  was  fin- 
ished by  another  contractor). 

i«8  See  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co.,  94 
Cal.   229,   238,   29  Pac.  Rep.   629. 

"»  Johnson  v.  La  Grave,  102  Cal.  324,  326.  36  Pac.  Rep.  651.  See 
Green  v.  Clifford,  94  Cal.  49.  51,  29  Pac.  Rep.  331. 


§  358  mechanics'  liens.  288 

Where  the  statutory  original  contract  is  void,  there  is  no 
contract  upon  which  there  may  be  a  cessation  from  labor  ;^^^ 
and  the  cessation,  if  any,  must  be  from  labor  upon  "  any 
building,  improvement,  or  structure,  or  the  alteration,  addi- 
tion to,  or  repair  thereof."  In  such  ease,  if  there  be  a  cessa- 
tion from  labor  for  thirty  days,  it  would  be  such  a  statutory 
completion ;  but  if,  before  the  thirty  days  have  expired,  the 
owner  continues  the  work,  the  claimant  must  look  to  some 
other  subsequent  completion,  either  actual  or  statutory,  or  to 
the  filing  of  notice  thereof,  for  the  purpose  of  filing  his 
lien.^^^  And  if  the  statutory  original  contract  is  void,  sub- 
claimants  are  not  required  to  file  their  claims  within  thirty 
days  from  the  cessation  of  labor  by  the  contractor,  but  may 
file  them  within  thirty  days  after  the  completion  of  the 
building. ^^^ 

§  358.  Abandonment  of  original  contract."^  A  clear  dis- 
tinction must  be  drawn  between  a  cessation  from  labor  dis- 
cussed in  the  preceding  section,  even  for  the  statutory  period 
of  thirty  days,  and  an  abandonment  of  the  contract.  There 
might  be  no  intention  to  abandon  a  valid  contract,  and  still 
there  might  be  a  cessation  of  labor  for  the  statutory  period ; 

1"  See  §§  286  et  seq.,  ante. 

^^  Wniamette  S.  M.  L.  &  M.  Co.  v.  Los  Ang-eles  CoUege  Co.,  94  Cal. 
229,  240,  29  Pac.  Rep.  629.  See  Pierce  v.  Birkholm,  115  CaL  657,  662,  47 
Pac.  Rep.  681. 

See  "Time  of  Filing  Claim,"  §§416  et  seq.,  post. 

113  Pierce  v.  Birkholm,  115  Cal.  657,  662,  47  Pac.  Rep.  681. 

"■•  AbJindomneiit  of  contract  to  construct  schooUiouse:  See  Union 
S.  M.  Works  V.  Dodge,   129  Cal.   390,   393,   62  Pac.   Rep.   41. 

Abandonment  under  a  non-statutory  ori^^inal  contract:  See  South- 
ern Cal.  L.  Co.  V.  Jones,  133  Cal.  242,  244,  65  Pac.  Rep.  378. 

Liability  of  o^vner  on  abandonment,  under  valid  .statutory  original 
contract:  McDonald  v.  Hayes,  132  Cal.  490,  494,  64  Pac.  Rep.  850. 

See  "  Liability  of  Owner,"  §§  523  et  seq.,  post. 

Abandonment  of  contract  by  contractor,  rights  of  claimants  in  the 
fund:  See  Stimson  M.  Co.  v.  Nolan  (Cal.  App.,  June  19,  1907),  91  Pac. 
Rep.  262. 

Abandonment  by  subcontractor:  See  Pohlman  v.  W'ilcox,  146  Cal. 
440,  80  Pac.  Rep.  625. 

As  to  abandonment,  generally,  see  note  94  Am.  St.  Rep.  119. 

As  to  right  to  lien  when,  without  fault  of  tlie  owner,  the  building 
Is  not  eomiileted,  see  note  43  Am.  St.  Rep.   900. 

As  to  right  to  lien  when  improvenient  destroyed  by  fire  before  com- 
pletion, see  2  Am.  &  Eng.  Ann.  Cas.   812. 

Hawaii.  Abandonment:  See  Pacific  H.- Co.  v.  Lincoln,  12  Hawn.  358, 
359. 

Washington.      See  Brodek  v.  Farnum,  11  Wash.  565,  40  Pac.  Rep.  189. 


289  EXTINCTION    OF    CONTRACT.  §  359 

and,  on  the  other  hand,  there  may  be  an  intention  to  abandon 
and  an  actual  abandonment  by  the  contractor,  without  any 
cessation  of  labor  on  the  building.  Abandonment  must  also 
be  distinguished  from  failure  to  carry  out  the  contract 
strictly  in  accordance  with  its  terms.  Abandonment  is  incon- 
sistent with  a  bona  fide  attempt  to  perform  the  contract."" 

§  359.  Same.  Owner's  liability.  Where  there  is  a  valid 
statutory  original  contract,  it  is  the  measure  of  the  owner's 
liability;  and  where  the  contractor  fails  to  perform  such 
contract,  the  statute  ""  provides  the  mode  of  determining  the 
owner's  liability."^ 

"=  Marchant  v.  Hayes,  120  Cal.  137,  49  Pac.  Rep.  840.  See  Perry  v. 
Quackenbush,  105  Cal.  299,  307,  38  Pac.  Rep.  740. 

See  "  Performance  of  Contract,"  §§  334  et  seq.,  ante. 

Intent  to  abandon.  In  nearly  all  the  cases  reported,  the  cessation 
from  labor  was  accompanied  by  an  intent  to  abandon.  See  "  Rights 
and  Duties  of  the  Owner,"  §§  523  et  seq.,  post. 

Under  a  valid  contract,  it  has  been  said  that  a  finding  that  the 
original  contractor  "entirely  ceased  labor  thereon  without  completing 
said  building"  is  a  fair  definition  of  "abandonment":  McDonald  v. 
Hayes,  132  Cal.  490,  495,  64  Pac.  Rep.  850;  but  this  definition  makes 
no  allowance  for  intent. 

Compare:  Judson  v.  Malloy,  40  Cal.  299,  and  Kerr's  Cye.  Civ.  Code, 
note  p.  1151. 

Hawaii.  Abandonment  of  work  by  the  contractor,  after  payment 
in  full  for  the  proportion  of  the  work  then  done,  is  not  a  bar  to  the 
enforcement  of  a  lien  for  materials  furnished  by  the  subcontractor 
before  the  abandonment;  but  the  case  would  be  otherwise  if  the 
statute  merely  svibrogated  the  subcontractor  to  the  rights  of  tlie 
original  contractor:    Allen  v.  Redward,  10  Hawn.  151,   157. 

Olilahonia.  Failure  to  complete  the  structure  within  the  contract 
time,  there  being  a  provision  for  damages  for  delay,  is  not  an  aban- 
donment, and  where  the  contract  provides  for  notice  in  case  of  aban- 
donment of  the  work,  a  mere  breach  of  the  contract  does  not  require 
such  notice:  American  S.  Co.  v.  Scott   (Okl.),  90  Pac.  Rep.  7,  9. 

Washington.  See  Huttig  Bros.  Mfg.  Co.  v.  Denny  Hotel  Co.,  6  Wash. 
122,   624,  34  Pac.  Rep.   774. 

116  Kerr's  Cyc.  Code  Civ.  Proc,  §  1200. 

Contractor's  substantial  perforiiianee  of  his  undertaking,  and  an 
earning  of  the  contract  price,  is  contemplated  in  this  statute:  Hoff- 
man-Marks Co.  V.  Spires   (Cal.,  Aug.   8,  1908),  36  Cal.  Dec.  120. 

"'  McDonald  v.  Hayes,  132  Cal.  490,  495,  64  Pac.  Rep.  850. 

Abandonment  by  contractor.  O^vuer's  liability  is  limited  to  such 
portion  of  the  contract  price  as  represents  the  value  of  work  already 
done:  and  where  value  of  work  done  amounts  to  less  than  payments 
already  made  ijnder  the  contract,  there  is  nothing  available  for  lien 
claimants,  and  they  miist  look  to  the  contractor:  Hoffm.an-Marks  Co. 
V.  Spires,  supra;  C.  Scheerer  Co.  (Inc.)  v.  Deming  (Cal..  Aug.  10, 
1908),  36  Cal.  Dec.  126.  See  McCune  v.  Jackman  (Cal.  App.,  March 
16,   1908),  95  Pac.  Rep.  673. 

See  S§  315  et  seq.,  ante. 
Mech.  Liens  —  19 


i 


§  360  mechanics'  liens.  290 

Where  the  contractor  abandons  or  fails  to  perform  such  a 
valid  contract  in  full,  it  has  been  held  that  his  subclaimants 
are  not  entitled,  under  section  tAvelve  hundred  of  the  Code  of 
Civil  Procedure,  to  a  lien  to  the  full  amount  of  the  contract 
price  remaining  unpaid,  irrespective  of  the  cost  of  comple- 
tion by  the  owner,  although  the  owner  did  not  proceed  with 
such  completion  within  thirty  days  after  the  contractor 
ceased  work.^^^ 

The  value  of  the  work  and  materials  done  and  furnished 
by  the  contractor,  including  materials  upon  the  ground, 
estimated  as  near  as  may  be  by  the  standard  of  the  whole 
contract  price,  and  the  reasonable  cost  of  completing  the 
building  according  to  the  original  contract,  if  valid,  it  has 
likewise  been  held,  are  materal  elements  in  determining  the 
owner's  liability. ^^^ 

Upon  abandonment  of  a  non-statutory  original  contract, 
the  liens  of  subclaimants  cannot  exceed  the  sum  iu  the 
owner's  hands  due  and  unpaid  to  the  contractor  under  the 
contriact  at  the  time  of  the  abandonment.^-'' 

§  360.  Same.  Justification  for  abandonment.  There  can 
be  no  rescission  or  abandonment  of  a  contract  by  a  party  who 
has  fully  jierformed  his  part  of  it,  and  where  the  contract 
provides  for  the  payment  of  instalments,  a  failure  to  pay  one 
instalment  when  due  does  not  give  a  right  of  action  to  re- 
cover the  entire  contract  price,  in  the  absence  of  a  specific 
agreement  to  that  effect. ^^^ 

If  the  contractor  has  not  performed  the  contract  according 
to  its  terms  at  the  time  he  demands  payment  of  an  instal- 

"s  McDonald  v.  Hayes,  132  Cal.  490,  494,  64  Pac.  Rep.  850. 

"»  McDonald  v.  Hayes,  132  Cal.  490,  495,  64  Pac.  Rep.  850. 

In  estimating  ^vorlc  already  done,  it  is  proper  to  consider  not  only 
the  value  of  the  work  completed  at  such  time,  but  also  the  cost  of 
doing  that  which  is  left  undone,  so  that  the  whole  may  be  compared 
with  the  contract  price:  Hoffman-Marks  Co.  v.  Spires,  supra;  C. 
Scheerer  Co.   (Inc.)  v.  Deming  (Cal.,  Aug.   10,  1908),  36  Cal.  Dec.   126. 

Final  payment  unavailable  for  lien  claimants  of  original  contractor, 
who  abandons  the  contract,  when  such  contractoc  has  been  paid  in 
full  for  the  work  up  to  the  time  of  the  abandonment:  Hoffman-Marks 
Co.  V.  Spires,  supra;  Raphael  Co.  v.  Grote  (Cal.,  Aug.  10,  1908),  36  Cal. 
Dec.  125;  C.  Scheerer  Co.    (Inc.)   v.  Deming,  supra. 

'20  Southern  Cal.  L.  Co.  v.  Jones,  133  Cal.  242,  244,  65  Pac.  Rep.  378. 

>«  Flinn  v.  Mowry,  131  Cal.  481,  485,  63  Pac.  Rep.  724,  1006. 


291  EXTINCTION   OF    CONTRACT.  §  360 

ment,  then  it  is  not  due,  and  he  is  not  justified  in  leaving  tlie 
work ;  and  if  he  leaves  the  work  without  cause,  it  is  an  aban- 
donment of  the  contract,  as  contemplated  by  the  statute  ^^^ 
providing  for  the  liability  of  the  owner  upon  abandonment 
of  the  valid  contract  by  the  contractor.^^^ 

If  the  owner  has  a  proper  claim  for  damages  for  breach  of 
the  contract,  and  the  other  party  insists,  as  a  condition  to 
continuing  the  work,  that  the  owner  shall  waive  his  claim  for 
damages,  this  is  a  refusal  to  perform  the  contract.^-*  But  if 
the  owner  prevents  the  contractor  from  completing  his  con- 
tract, he  is  justified  in  abandoning  it.^^^ 

The  mere  conveyance  of  the  property  during  the  pro- 
gress of  the  work  under  the  contract  does  not  alone  consti- 
tute an  abandonment  of  the  construction  of  the  building  by 
the  owner,  where  it  does  not  appear  whether  the  grantee  had 
or  had  not  completed  or  abandoned  the  construction  of  the 
building.^^'* 

"2  Kerr's  Cyc.  Code  Civ.  Proc,  §  1200. 

See  §  339,  ante. 

"3  Golden  Gate  L.  Co.  v.  Sahrbacher,  105  Cal.  114,  116,  38  Pac.  Rep. 
635. 

See  "Liability  of  Owner,"  §§523  et  seq.,  post. 

Idaho.  Facts  justifying-  an  abandonment  of  the  contract:  See 
Harris  v.  Faris-Kesl  Const.  Co.    (Idaho),   89  Pac.  Rep.  760,  762. 

^  Bryson  v.  McCone,  121  Cal.  153,  53  Pac.  Rep.  637,  638. 

Oregron.  Damages  for  delay,  Sundays:  Vanderhoof  v.  Shell,  42 
Oreg.  578,  72  Pac.  Rep.  126. 

^  Cox  V.  Western  Pac.  R.  Co.,  47  Cal.  87,  89;  and  see  Cox  v. 
McLaughlin,   54  Cal.   605,   606. 

E^xcuse  for  non-performance:   See,   generally,   note   18   Am.   Dec.   452. 

As  to  what  constitutes  prevention,  see  §  339,   ante. 

Wasliington.  But  not  where  the  contractor  was  compelled  by  the 
owner  to  pay  his  debts  due  to  other  parties:  De  Mattos  v.  Jordan,  15 
Wash.  378,  46  Pac.  Rep.  402. 

'=«  Cohn  V.  Wright,  89  Cal.  86,  88,  26  Pac.  Rep.  643. 

Wasiiington.  After  mutual  rescission  and  abandonment  of  the 
original  contract,  the  contractor  is  not  obliged  to  complete  the  struc- 
ture at  the  instance  of  the  vendee  of  the  owner,  such  vendee  knowing 
the  facts:  Huetter  v.  Redhead,  31  Wash.  320,  71  Pac.  Rep.  1016. 

Abundwnnieut  of  >vorl«  on  irri;;;ution-ditoli  by  consent:  See  Dyer 
V.  Middle  Kittitas  Irr.  Dist.,  25  Wash.  80,  64  Pac.  Rep.  1009,  s.  c.  40 
Wash.  238,  82  Pac.  Rep.  301. 


§  361  mechanics'  liens.  292 


CHAPTER  XIX. 

CLAIM  OP  LIEN.  NATURE,  NECESSITY,  AND  PURPOSE. 

§  361.  Resemblance  between  statutory  provisions  as  to  claim  of  lien. 

§  362.  Nature  of  claim  of  lien. 

§  363.  Statutory  provision.     California. 

§  364.  When  claim  of  lien  is  necessary. 

§  365.  Purpose  of  claim  of  lien. 

§  366.  The  necessity  of  one  or  more  claims  of  lien. 

§  367.  Same.     Persons  joining  in  same  claim  of  lien. 

§  368.  Same.     Several  objects  and  pieces  of  property. 

§  369.  Same.     Various  items  of  labor  or  materials. 

§  361.  Resemblance  between  statutory  provisions  as  to 
claim  of  lien.  The  legislatures  of  the  various  states  have 
adopted  different  methods  of  notifying  ^  the  owner  of  the 
claims  for  material  and  labor  in  the  construction  of  the 
objects  enumerated  in  the  statutes,  as  well  as  for  the  per- 
fecting of  the  inchoate  lien." 

Claim  of  lien  and  notice  of  claim  to  owner.  Distinction. 
The  claim  of  lien  required  to  be  filed  by  the  California  stat- 
ute ^  must  be  carefully  distinguished  from  the  notice  of 
claim  which  may  be  given  to  the  owner  under  another  pro- 
vision of  the  statute.*  Many  of  the  Western  states  have 
followed  one  or  the  other  of  these  forms  of  notice  to  the 
owner,  while  some  have  enacted  procedures  substantially 
different.     "  Claim  of  lien  "  and  "  notice  to  owner  "  will  be 

*  See,  generally,  as  to   death   of  owner  before  filinc:  claim,   note   43 

Am.  St.   Rep.   7  78. 

Notice  to  owner  as  a  condition  of  lien:  See  note  11  L.  R.  A.  740. 

Notice  to  be  tiled,  and  operation  thereof:  See  note  13  L.  R.  A.  704. 

Idaho.  See,  generaHy,  under  an  early  statute,  Creer  v.  Cache 
V.  C.  Co.,  4  Idaho  2S0,  38  Pac.  Rep.  653,  95  Am.  St.  Rep.  63. 

Utah.  PubHshing-  notice  under  §  1391,  Rev.  Stats.  1898:  See  ElweU 
v.  Morrow,  28  Utah  278,  78  Pac.  Rep.  605;  Sandberg  v.  Victor  G.  &  S. 
M.  Co.,  24  Utah   1,  66  Pac.  Rep.  360. 

-  Colorado.  Before  the  claim  of  lien  is  filed,  the  lien  is  inchoate: 
Sprague  I.  Co.  v.  Mouat  L.  &  I.  Co.,  14  Colo.  App.  107,  60  Pac.  Rep.  179, 
182.     See  S§  9,  23,  ante. 

3  Kerr's  Cyc.  Code  Civ.  Proc,  §  1187. 

*  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1184. 

See  Jewell  v.  McKay,  82  Cal.  144,  149,  23  Pac.  Rep.  139. 
See  "Notice  to  Owner,"  §§  547  et  seq.,  post. 


293  CLAIM   OF   LIEN.  §  362 

here  used  to  indicate  the  two  forms  of  instruments,  above 
mentioned,  under  the  California  statute.  It  is  intended  in 
this  chapter  to  discuss  the  former  only.  The  latter  will  be 
considered  hereafter  in  detail.' 

§  362.  Nature  of  claim  of  lien.  A  "  lien  "  "  is  a  charge 
imposed  in  some  mode,  other  than  by  a  transfer  in  trust 
upon  specific  property,  by  which  it  is  made  security  for  the 
performance  of  an  act.'  A  mechanic's  lien  comes  into  exist- 
ence by  the  filing  of  a  proper  "  claim."  The  "  claim  of 
lien  "  is  not  the  "  lien  " ;  neither  is  it  the  enforcement  of  the 
lien,  nor  any  step  in  its  enforcement ;  but  the  filing  thereof 
is  merely  one  of  the  acts  to  be  performed  in  perfecting  the 
lien.®     If  the  claimant  does  not  file  a  proper  claim  of  lien 

5  See  "Liability  of  Owner  as  Fixed  by  Notice,"  §§  547  et  seq.,  post. 

'  The  "  notice  of  lien  "  and  "  lien  "  are  often  spoken  of  in  tlie  decis- 
ions as  if  they  were  synonymous  with  the  "claim  of  lien":  See,  for 
instance.  Cox  v.  Western  Pac.  R.  Co.,  44  Cal.  18,  28;  Silvester  v.  Coe 
Q.  M.  Co.,  SO  Cal.  .510,  511,  22  Pac.  Rep.  217.  And  see  also  Kerr's  Cye. 
Pol.  Code,  §  4236,  subd.  16,  and  note. 

'  See  Kerr's  Cyc.  Civ.  Code,  §§  2872  et  seq.,  and  notes;  Kerr's  Cyc. 
Code  Civ.  Proc.,  §  1180,  and  note. 

See  §  19,  ante. 

s  Corbett  v.  Chambers,  109  Cal.  178,  183,  41  Pac.  Rep.  873;  All  Lotiif 
V.  Harwood,  140  Cal.  500,  504,  74  Pac.  Rep.  41.  See  Hughes  v.  Hoover, 
3  Cal.  App.  145,  84  Pac.  Rep.  681,  683;  Boscow  v.  Patton,  136  Cal.  90. 
68  Pac.  Rep.  490. 

Colorado.  See  Schradsky  v.  Dunklee,  9  Colo.  App.  394,  398,  48  Pac. 
Rep.  6(5  6. 

Hawaii.     Lucas  v.  Redward,   9  Hawn.   23,   25. 

Montana.  See  McGlauflin  v.  Wormser,  28  JNIont.  177,  72  Pac.  Rep. 
428   (under  §2131,   Code  Civ.  Proc). 

New  Mexico.  See  Mountain  E.  Co.  v.  Miles,  9  N.  M.  512,  56  Pac.  Rep. 
284,  286. 

Nevada.     But  see  Sabin  v.  Connor,  21  Fed.  Cas.  124. 

Oregon.  See  Horn  v.  United  States  M.  Co.  (Oreg.),  81  Pac.  Rep. 
1009.  But  see  notice  and  statement  under  act  of  1874:  Whittier  v. 
Blakely,  13  Oreg-.  546,  11  Pac.  Rep.  305;  and  see  In  re  Coulter.  2  Sawy. 
C.  C.  42,  6  Fed.  Cas.,  p.  637,  6  N.  B.  R.  64,  1  Am.  L.  T.  Rep.  Bankr.  257, 
3  Chic.  Leg.  News,  377,  4  Am.  Law  T.  131. 

Utali.  The  doctrine  as  construed  under  the  act  of  1890  in  this  state 
differs  from  that  generally  held,  the  court  saying,  "  Every  person 
claiming  a  lien  must  file  the  statement  as  provided  in  this  section 
(§  10).  This  is  indispensable  to  preserve  the  lien  provided  for  in  the 
preceding  sections.  ...  It  is  evident  that  the  filing  of  the  statement 
does  not  create  the  lien,  .  .  .  but  simply  holds  it  or  keeps  it  in  force 
for  the  time  of  one  year,  ...  so  as  to  give  the  claimant  an  opportu- 
nity to  enforce  the  same  by  process  of  law":  Morrison  v.  Carey-Lom- 
bard Co.,  9  Utah  70,  33  Pac.  Rep.  238.  But  see  Garland  v.  Bear  Lake 
&  R.  W.  &  Irr.  Co.,  9  Utah  350,  359,  34  Pac.  Rep.  368. 

See  §  364,  post. 


§  363  mechanics'  liens.  294 

within  the  time  and  in  the  manner  prescribed  by  law,  he  has 
no  lien  upon  the  property,  whatever  other  remedy  he  may 
have.® 

§  363.  Statutory  provision.  California.  The  California 
statute  provides  :^°  "  [A]  Every  original  contractor,  [1]  at 
any  time  after  the  completion  of  his  contract,  and  [2]  until 
the  expiration  of  sixty  days  after  the  filing  of  said  notice  of 
completion  or  notice  of  cessation  of  labor  by  the  owner,^^  and 
[B]  every  person,  save  the  original  contractor,  claiming  the 
benefit  of  this  chapter,  [1]  at  any  time  after  the  completion 
of  any  building,  improvement,  or  structure,  or  of  the  altera- 
tion, addition  to,  or  repair  thereof,  and  [2]  until  the  expira- 
tion of  thirty  days  after  the  filing  of  said  notice  of  comple- 
tion or  cessation,  by  said  owner,  or  [3]  within  thirty  days 
after  the  performance  of  any  labor  in  a  mining  claim,  must 

The  statement  of  intention  to  perform  labor  or  furnish  material 
under  §  12  of  the  same  act  is  permissive:  Morrison  v.  Carey-Lombard 
Co.,  supra. 

Washington.  Laws  1893,  p.  33,  §5  (Ballinger's  Ann.  Codes,  §5904): 
"No  lien  created  by  this  act  shall  exist,  .  .  .  unless  within  ninety  days 
...  a  claim  for  such  lien  shall  be  filed,"  etc.:  See  Nason  v.  North- 
western M.  &  P.  Co.,  17  Wash.  142,  146,  49  Pac.  Rep.  235;  Pacific  Mfg. 
Co.  V.  Brown,  8  Wash.  347,  36  Pac.  Rep.  273;  United  States  S.  L.  &  B. 
Co.  V.  Jones,  9  Wash.  434,  440,  37  Pac.  Rep.  666;  Johnston  v.  Harring- 
ton, 5  Wash.  73,  79,  31  Pac.  Rep.  316;  Gates  v.  Brown,  1  Wash.  470, 
474,'  25  Pac.  Rep.  914;  Cowie  v.  Ahrenstedt,  1  Wash.  416,  418,  25  Pac. 
Rep.  458. 

9  Southern  Cal.  L.  Co.  v.  Schmitt,  74  Cal.  625,  627,  16  Pac.  Rep.  516; 
Santa  Clara  V.  M.  &  L.  Co.  v.  Williams  (Cal.),  31  Pac.  Rep.  1128.  See 
Boscow  V.  Patton,  136  Cal.  90,  68  Pac.  Rep.  490. 

See  "Cumulative  Remedies,"   §638. 

As  to  right  to  enforce  nieehanlc's  lien  and  pursue  other  remedy, 
see  note  3  Am.  &  Eng.  Ann.  Cas.  1100. 

Colorado.     See  Schradsky  v.  Dunklee,  9  Colo.  App.  394,  48  Pac.  Rep. 

666. 

Under  act  of  1889,  the  failure  to  file  the  statement  within  the  time 
prescribed  did  not  defeat  the  lien,  except  as  against  innocent  pur- 
chasers and  encumbrancers:    Marean  v.  Stanley,  5  Colo.  App.  335. 

Oregon.  Hughes  v.  Lansing,  34  Oreg.  118,  55  Pac.  Rep.  95,  96,  75 
Am.  St.  Rep.  574;  Rankin  v.  Malarkey,  23  Oreg.  593,  32  Pac.  Rep.  620, 
34  Id.  816. 

Utah.     But  see  Morrison  v.  Carey-Lombard  Co.,   9  Utah   70.   33   Pac. 

Rep.  238  (1890). 

AVashington.  United  States  S.  L.  &  B.  Co.  v.  Jones,. 9  Wash.  434.  440, 
37  Pac.  Rep.  666;    Alexander  v.  Hemrich,  4  Wash.  727,  31  Pac.  Rep.  21. 

i»  Kerr's  Cyc.  Code  Civ.  Proc,  §  1187,  as  amended  Stats.  1897,  p.  202. 
For  other  statutes,  see  Table  of  Correlated  Statutes,  at  front  of 
volume. 

1'  Notice  of  completion;  See  §§  425  et  seq.,  post. 


295  CLAIM   OF   LIEN.  §  364 

file  for  record  with  the  county  recorder  of  the  county,  or  city 
and  county,  in  which  such  property  or  some  part  thereof  is 
situated,  a  claim  containing  [a]  a  statement  of  his  demand, 
[b]  after  deducting  all  just  credits  and  offsets,  [c]  with  the 
name  of  the  owner  or  reputed  owner,  if  known,  and  [d]  also 
the  name  of  the  })ersou  by  whom  he  was  employed,  or  to 
whom  he  furnished  the  materials,  [e]  with  a  statement  of 
the  terms,  time  given,  and  conditions  of  his  contract,  and 

[f]  also  a  description  of  the  property  to  be  charged  with 
the  lien,  sufficient  for  identification,   which   claim  must  be 

[g]  verified  by  the  oath  of  himself  or  of  some  other  person; 
provided,  however,  that  in  any  event  [4]  all  claims  of  lien 
must  be  filed  within  ninety  days  after  the  completion  of  said 
building,  improvement,  or  structure,  or  the  alteration,  addi- 
tion to,  or  repair  thereof." 

§  364.  When  claim  of  lien  is  necessary.  A  claim  of  lien  is 
required  to  perfect  the  lien  in  the  case  of  work  upon  struc- 
tures ^-  mentioned  in  section  eleven  hundred  and  eighty- 
three,^^  and  materials  furnished  to  be  used  in  the  construc- 
tion, alteration,  addition  to,  and  repair  thereof;  ^*  and,  l)y  the 
express  language  of  section  eleven  hundred  and  eighty- 
seven,^^  in  the  case  of  "  the  performance  of  any  labor  in  a 
mining  claim."  ^^ 

In  case  of  furnishing  materials  for  work  in  mining  claim, 
it  has  been  generally  assumed  that  it  is  necessary  to  file  a 
claim  of  lien,  apparently  under  the  broad  provision  of  sec- 

'=  See  "Nature  of  Labor,"  §§130  et  seq.,  ante;  "Object,"  §§166  et 
secj.,  ante. 

"  Kerr's  Cyc.  Code  Civ.  Proe.,  §  1183,  and  note. 

"  See  §§  144  et  seq.,  ante. 

'5  Kerr'M  Cyc.  Code  Civ.  Proc,  §  1187. 

Utah.  Under  act  of  1890,  it  seems  that  the  claim  of  lien  is  not 
necessary  "to  create"  the  lien,  but  simply  to  "preserve"  it;  the  lien 
being  created  when  the  labor  is  performed  or  materials  are  furnished, 
although  it  is  also  said  that  upon  the  filing  of  the  statement  provided 
for  in  §  11  the  lien  is  "completed."  This  language  is  not  very  clear  or 
satisfactory;  iVIorrison  v.  Carey-Lombard  Co.,  9  Utah  70,  33  Pac.  Rep. 
238.  But  see  Garland  v.  Bear  Lake  &  R.  W.  &  Irr.  Co.,  9  Utah  350,  359, 
34  Pac.  Rep.   368. 

See  §  362,  ante. 

VVaHiiingtun.  The  fact  that  the  contract  is  made  with  the  owner 
does  not  any  the  less  require  a  compliance  with  the  statute  as  to  filing 
the  claim;  United  States  S.  L.  &  Bldg.  Co.  v.  Jones,  9  Wash.  434,  440, 
37  Pac.  Rep.  666. 

"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1187. 


§  364  mechanics'  liens.  296 

tion  eleven  hundred  and  eighty-seven,"  that  "  every  person, 
save  the  original  contractor,  claiming  the  benefit  of  this 
chapter  .  .  .  must  file  for  record  ...  a  claim,"  etc.,  al- 
though there  is  no  express  provision  in  the  statute  for  the 
time  within  which  such  claim  must  be  filed  for  record. 
Although  the  statute  ^^  quoted  in  the  preceding  section 
apparently  refers  to  the  objects  enumerated  in  the  first 
clause  of  section  eleven  hundred  and  eighty-three,^^  namely, 
"  structures,"  and  in  the  second  clause,  namely,  "  in  a  min- 
ing claim,"  or  in  or  upon  any  real  property  worked  as  a 
minCj^"  yet  it  is  thought  that  the  requirement  as  to  filing  the 
claim  of  lien  is  applicable  in  the  case  of  work  under  section 
eleven  hundred  and  ninety-one,^^  relating  to  work  on  streets, 
etc.,  in  incorporated  cities.^^ 

Fact  that  the  statutory  original  contract  is  verbal,  and 
therefore  void,  does  not  relieve  the  claimant  from  compliance 
with  the  provisions  of  section  eleven  hundred  and  eighty- 
seven,^^  the  court  saying,  "  That  section  declares  that  '  every 
person '  seeking  the  benefits  of  that  chapter  must  state  in 
his  claim  of  lien  all  of  the  facts  therein  specified."  -* 

Necessity  for  claim  of  lien.  It  has  therefore  been  held, 
either  expressly  or  impliedly,  that  in  all  cases  mentioned  in 
the  chapter  relating  to  liens  of  mechanics  and  others  upon 
real  property,^^  it  is  necessary,  in  order  that  a  lien  may  be 

>'  See  "Time  of  Filing  Claim,"  §422,  post;  California  P.  W.  v.  Blue 
Tent  Consol.  H.  G.  Mines  Co.  tCal.),  22  Pac.  Rep.  391.  The  question  as 
to  whether  or  not  it  was  necessary  to  file  a  claim  at  all  was  not  raised, 
but  the  issue  as  to  the  time  of  filing  seems  impliedly  to  cover  the 
point. 

"■  Kerr's   Cyc.   Code   Civ.   Proc,    §  1187. 

"•  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1183. 

='»  See  §  184,  ante. 

"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1191. 

2=  Beatty  v.  Mills,  113  Cal.  312,  313,  45  Pac.  Rep.  468  (in  this  case  it 
was  assumed  that  a  claim  of  lien  must  be  filed,  and  the  issue  was  as 
to  the  time  of  filing);  Warren  v.  Hopkins,  110  Cal.  506,  42  Pac.  Rep. 
986. 

See  ••  Time  of  Filing  Claim,"  §  422,  post. 

Oreji;on.  All  the  provisions  of  §§  3669-3682,  Hill's  Ann.  Laws,  are 
applicable  to  grading,  etc.,  under  §  3676,  Id.:  Pilz  v.  Killingsworth,  20 
Oreg.  432,  26  Pac.  Rep.   305. 

23  Kerr's  Cyc.  Code  Civ.  Proc,  §  1187. 

-^  Madera  F.  &  T.  Co.  v.  Kendall,  120  Cal.  182,  184,  52  Pac.  Rep.  304, 
65  Am.  St.  Rep.  117,  citing  Davis  v.  MacDonough,  109  Cal.  547,  42  Pac. 
Rep.    450. 

^  Kerr's  Cyc.  Code  Civ.  Proc,  §§  1183-1203a. 


297  CLAIM   OF   LIEN.  §  365 

perfected,  to  file  such  a  claim ;  but  no  claim  of  lien  need  be 
filed  to  perfect  a  cause  of  action  in  personam  against  an 
employer  after  giving  the  notice  to  him  provided  by  section 
eleven  hundred  and  eighty-four  ^^  to  intercept  moneys  in  his 
hands  due  the  contractor.-^ 

§  365.  Purpose  of  claim  of  lien.  Under  previous  statutes 
of  California,-*  notice  to  the  owner,  similar  to  that  pro- 
vided for  in  section  eleven  hundred  and  eighty-four  ^^  was 
required.  The  main  object  of  giving  personal  notice  by  the 
claim  to  the  owner  of  the  building  is  to  affect  him  with 
notice  of  the  lien,  and  afford  him  an  opportunity  to  protect 
himself  against  the  same  in  his  dealings  with  the  original 
contractor  and  others ;  ^^  and  this  is  likewise  one  of  the 
objects  of  filing  the  claim  of  lien  for  record,  to  give  notice  of 
the  lien  to  those  interested,  or  about  to  become  interested,  in 
the  property  upon  which  it  is  claimed,  and  for  the  protec- 
tion of  those  who  may  deal  with  the  owner  of  the  property.^^ 

Purpose  of  such  record  is  also  to  inform  owner,  in  case 
of  contractor  and  laborers  rendering  services  under  such 

28  Kerr's  Cye.  Code  Civ.  Proc.,   §  1184. 

2'  Kerr's  Cye.  Code  Civ.  Proc,  §  1184;  First  Nat.  Bank  v.  Perris  Irr. 
Dlst.,  107  Cal.  55,  65,  40  Pac.  Rep.  45;  Bates  v.  Santa  Barbara  Co.,  90 
Cal.  543,  547,  27  Pac.  Rep.  438. 

No  eliiiin  was  required  to   be  filed  uuder  tlie  act  of  Marcli  31,   1891, 

giving  a  lien  to  certain  laborers  of  corporations:  Keener  v.  Eagle 
Lake  L.  &  L  Co.,  110  Cal.  627.  631,  43  Pac.  Rep.  14;  Kuschel  v.  Hunter 
(Cal.),  50  Pac.  Rep.  397.  This  act  was,  however,  declared  unconstitu- 
tional.    See   §§  28  et  seq.,   ante. 

Colorado.  Statement  essential  to  perfect  lien  under  act  of  1883,  as 
amended  in  1889:  Cary  Hardware  Co.  v.  McCarty,  10  Colo.  App.  200, 
210,  50  Pac.  Rep.  744. 

=»  Stats.  1850,  p.  212,  §2;  Stats.  1855,  p.  157,  §3;  Stats.  1858,  p.  225; 
Stats.  1862,  p.  385,  §  5. 

-*  Kerr's  Cye.  Code  Civ.  Proc.,  §  1184.     See  "  Notice  to  Owner,"  §§  547 
et  seq.,  post. 
.  ■■<>  Corbett  v.  Chambers,  109  Cal.  178,  181,  182,  41  Pac.  Rep.  873. 

Utah.  Filing  claim  before  furnishing  labor  or  material,  simply  an 
additional  safeguard,  under  §  1338  of  the  Revised  Statutes:  Morrison 
V.  Carey-Lombard  U  Co.,  9  Utah  70,  33  Pac.  Rep.  238   (1890). 

Washington.  Seattle  L.  Co.  v.  Sweeney,  33  Wash.  691,  74  Pac.  Rep. 
1001. 

Wyoming.     Wyman   v.   Quayle,   9   Wyo.   326,    63   Pac.   Rep.   988. 

"  Corbett  v.  Chambers,  109  Cal.  178,  181,  182,  41  Pac.  Rep.  873; 
Union  L.  Co.  v.  Simon   (Cal.  App.  and  Sup.),  89  Pac.  Rep.  1077,  1078,  1081. 

Montana.  Western  I.  W.  v.  Montana  P.  &  P.  Co.,  30  Mont.  550,  77 
Pac.   Rep.   413,  416. 

Oregon.  Osborn  v.  Logus,  28  Oreg.  302,  310,  37  Pac.  Rep.  456,  38  Id. 
190.  42  Id.  997. 


§  366  mechanics'  liens.  298 

contract,  as  to  the  extent  and  nature  of  the  lien-hoiders' 
claims,  to  facilitate  investigation  as  to  their  merits ;  ^-  and 
the  scheme  as  a  whole,  as  well  as  its  details,  indicates  the 
purpose  of  the  law-makers,  that  the  rights  of  subcontractors 
and  subclaimants  shall  be  ascertained  by  reference  to  the 
claim  of  lien  as  filed,  or  shall  rest  upon  proof  of  contracts 
between  them  and  the  original  contractor,  such  as  accord 
with  the  terms  and  conditions  set  forth  in  such  claims  of 
liens. ^^ 

Its  purpose  is  to  inform  claimants  also,  it  seems,  as  to  their 
probable  rights  in  the  property,  and  to  enable  them  to  learn 
the  names  of  persons  who  have  claims,  so  as  to  make  them 
parties  to  the  suit  to  foreclose  the  lien,  in  order  that  the 
rights  of  all  persons  interested  in  the  fund  may  be  deter- 
mined.^* 

Independently  of  any  such  purpose,  however,  it  is  essen- 
tial to  the  perfection  of  the  lien.^^ 

§  366.  The  necessity  of  one  or  more  claims  of  lien. 
"Whether,  in  a  particular  instance,  it  is  necessary  to  file  one 
or  more  claims  of  lien  depends  upon  the  statute,  and  upon 
the  circumstances  of  the  case.  The  fact  that  a  number  of 
claimants  have  demands  against  the  same  property,  or  that 
the  work  or  material  has  been  done  or  furnished  for  several 
structures,  or  that  they  consist  of  a  variety  of  items,  is  a 

Washington.  And  also  to  give  notice  of  all  the  facts  upon  which 
it  is  based:  McHugh  v.  Slack,  11  Wash.  370,  372,  39  Pac.  Rep.  674.  See 
Washington  R.  P.  Co.  v.  Johnson,  10  Wash.  445,  447,  39  Pac.  Rep.  115; 
Whittier  v.  Stetson  &  P.  M.  Co.,  6  Wash.  190,  195,  33  Pac.  Rep.  393,  36 
Am.  St.  Rep.  149. 

AVyoming.     TV^yman  v.  Quayle,  9  Wyo.  326,  63  Pac.  Rep.  988. 

32  Wagner  v.  Hansen,  103  Cal.  104,  107,  37  Pac.  Rep.  195;  Santa 
Monica  L.  &  M.  Co.  v.  Hege,  119  Cal.  376,  381,  51  Pac.  Rep.  555; 
McGinty  v.  Morgan,  122  Cal.  103,  54  Pac.  Rep.  392. 

Montana.     Richards  v.  Lewisohn,  19  Mont.  128,  131,  47  Pac.  Rep.  645. 

Utah.  Morrison  v.  Willard,  17  Utah  306,  53  Pac.  Rep.  832,  70  Am.  St. 
Rep.   784. 

W'a.shinston.  Collins  v.  Snoke,  9  Wash.  566,  570,  38  Pac.  Rep.  IGl. 
See  United  States  S.  L.  &  B.  Co.  v.  Jones,  9  Wash.  434,  440,  37  Pac.  Rep. 
666. 

35  Goss   V.   Strelltz,    54    Cal.   640,    643. 

Nevada.     Lonkey  v.  Wells,   16  Nev.   271. 

Ftah.  Morrison  M.  &  Co.  v.  Willard.  17  Utah  306.  53  Pac.  Rep.  832, 
70  Am.  St.  Rep.  784. 

"  See  "Filing  Claim,"  S§  416  et  seq.,  poSt;  "Parties  Plaintiff,"  S§  659 
et  seq..  post. 

^  See  §  362,  ante. 


299  CLAIM    OF    LIEN.  §  367 

matter  affecting  the  determination  of  the  question.  A  stat- 
ute may  allow  a  lien  on  two  or  more  pieces  of  land,  and  may 
permit  of  two  or  more  descriptions  in  the  claim  of  lien,  and 
allow  a  number  of  claimants  to  join  as  parties  plaintiff  in  the 
same  action;  but  it  is  evident  that  these  latter  matters  are 
not  necessarily-  involved  in  the  question  as  to  how  many 
claims  of  lien  must  be  filed  in  the  particular  instance  to  sat- 
isfy the  statute.^'' 

§  367.     Same.     Persons   joining  in   same   claim   of   lien. 

With  reference  to  the  persons  ^'  who  may  join  in  one  claim 
of  lien,  as  distinguished  from  the  enforcement  of  several 
liens  in  a  joint  action  to  foreclose  the  same,  under  provisions 
of  the  statute,^^  it  is  to  be  observed  that  the  question  has  not 
been  decided  in  California.^" 

A  separate  claim  of  lien  is  not  required  because  of  a  change 
of  ownership,  nor  because  of  mortgages  executed  by  a  new 
owner  to  the  former  owners.*" 

"*  See  "  Two  or  iMore  Descr-iptions,"  §  406,  post;  "  Parties  Plaintiff," 
§§  659  et  seq.;  "Territorial  Extent  of  Lien,"  §§  438  et  seq.,  post. 

Oregon.  Where  separate  contracts  were  made  by  a  subcontractor 
with  the  original  contractor  for  the  construction  of  two  different 
houses,  the  claimant  was  held  justified  in  filing-  separate  claims  of 
lien:  Smith  v.  Wilcox,  44  Oreg.  323,  74  Pac.  Rep.  70S,   75  Id.  710. 

As  to  lieu!«  where  contract  involves  construction  of  buildings  on 
separate  lots,   see   note   2   Ain.   &  Bng.   Ann.   Cas.   685-6S7. 

^'  See  "Parties  Plaintiff,"  §§  659  et  seq.,  post;  "Partners,"  §  44,  ante. 

^'  Kerr's   Cyc.   Code   Civ.   Proc,    §  1195,   and    note. 

"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1187,  which  provides  for  the  filing 
Of  such  claims,  seeins  to  indicate  the  filing  of  separate  claims  by 
several  claimants;  but  see  par.  "Washington,"  infra,  this  note. 

Nevada.  Under  Stats.  1871,  p.  123,  it  was  held  that  there  was  no 
provision  for  filing  a  joint  claim,  where  there  was  no  community  of 
interest;  Skyrme  v.  Occidental  M.  &  M.  Co.,  8  Nev.  219.  But  it  did 
not  prevent  the  subsequent  filing  of  valid  individual  claims;  Id. 

Washington.  Any  number  of  claimants  may  join  in  the  same  claim 
(under  §  5904,  Ballinger's  Ann.  Codes):  Hopkins  v.  Jamieson-Dixon  M. 
Co..  11  Wash.  308,  316,  39  Pac.  Rep.  815. 

•  Under  an  earlier  statute,  which  contained  a  provision  similar  to 
§  1195,  Kerr's  Cyc.  Code  Civ.  Proc,  allowing  claimants  to  join  as  plain- 
tiffs in  the  same  action,  it  was  said  that  if  they  could  do  this,  there 
was  no  reason  wliy  they  might  not  as  well  join  in  a  claim  of  lien,  as 
expense  was  thereby  saved,  where  tlie  character  of  the  claims  is 
the  same  and  the  same  property  is  being  proceeded  against,  each  claim 
being  stated  separately;  although  it  has  been  lield  by  some  courts 
that  the  right  to  join  in  a  claim  of  lien  must  come  from  the  statute: 
Chevret  v.  Mechanics'  M.  &  L.  Co.,  4  Wash.  721,  31  Pac.  Rep.  24. 

"  Ah  Louis  V.  Harwood,  140  Cal.  500,  504,  74  Pac.  Rep.  41. 

As  to  priorities  between  mechanics'  liens  and  mortgages,  see  note 
7  Am.  &  Eng.  Ann.  Cas.   624. 

See  §§  166  et  seq.,  ante. 


§  368  mechanics'  liens.  300 

§  368.  Same.  Several  objects  and  pieces  of  property. 
With  reference  to  the  property,  and  object  upon  which  the 
work  is  done,*^  one  claim  may  be  filed  against  two  buildings 
erected  at  the  same  time  and  under  one  contract.*^ 

Materials  used  elsewhere  than  in  improvement  on  which 
lien  claimed.  Where  an  unspecified  and  indeterminable 
portion  of  the  materials  mentioned  in  the  claim  of  lien  was 
furnished  to  the  owner  for  property  other  than  that  against 
which  the  claim  is  filed,  and  was  used  thereon,  which  prop- 
erty was  not  involved  in  the  suit,  and  these  items  cannot  be 

"  Right  to  file  a  niecliauic's  lien  against  several  buildings:  See  note 
17  L.  R.  A.  314;  also  2  Am.  &  Eng.  Ann.  Cas.  947. 

«  Booth  V.  Pendola,  88  Gal.  36,  40,  25  Pac.  Rep.  1101,  24  Id.  714. 
See  "  Two  Descriptions,"  §  406,  post;  "Extent  of  Lien,"  §§  438  et  seq., 
post. 

As  to  separate  buildings  on  non-contiguous  lots,  see  2  Am.  &  Eng. 
Ann.  Cas.    685. 

Colorado.     Small  v.  Foley,  8  Colo.  App.  435,   440,   47  Pac.  Rep.   64. 

Montana.  See  Smallhouse  v.  Kentucky  &  M.  G.  &  S.  M.  Co.,  2  Mont. 
443. 

Occasional  repairs,  if  subsequently  made,  cannot  be  added  to  the 
woi-K  performed  in  the  erection  of  a  building  months  before,  so  as 
to  render  the  whole  work  one  continuous  performance,  for  which  a 
single  lien  can  be  claimed  within  the  statutory  time  after  the  last 
repairs:  Davis  v.  Alvord,  94  U.  S.  445,  44S,  bk.  24  L.  ed.  28b.  See 
Alvord   V.    Hendrie,    2    Mont.    115. 

Oregon.  Willamette  S.  M.  L.  &  M.  Co.  v.  Shea,  24  Oreg.  40,  32  Pac. 
Rep.  759  (the  test  being  the  entirety  of  the  contract,  although  the 
statute  —  Hill's  Code,  §§3669,  3670,  3673  —  uses  the  words  "building" 
and  "land"  in  the  singular, — a  well-considered  case);  but  it  is  other- 
wise where  the  contract  is  not  entire  and  the  structures  are  not  on 
the  same  tract  of  land  (Id.):  The  Dalles  L.  &  M.  Co.  v.  W^asco  W.  M. 
Co..   3   Oreg.   527;   Kezartee   v.   Marks,    15   Oreg.    529,    16    Pac.    Rep.    407. 

The  first  case  reverses  the  reasoning  of  the  case  last  cited.  See 
also  Willamette  Falls  T.  &  M.  Co.  v.  Remick,  1  Oreg.  169,  170. 

See  note  2  Am.  &  Eng.  Ann.  Cas.  685. 

Separate  claims  were  upheld  under  separate  contracts  for  the  con- 
struction of  two  houses,  under  the  circumstances  of  the  case:  Smitli  v. 
Wilcox,   44   Oreg.   323,   74   Pac.   Rep.   708,    75   Pac.   Rep.    710. 

Utah.  Provided  that  the  claim  designates  the  amount  due  on 
each  building:  Eccles  L.  Co.  v.  Martin,  87  Pac.  Rep.  713,  718. 

But  see  "  Priorities  Inter  Sese,"  §§  504  et  seq.,  post. 

Washington.  Seattle  L.  Co.  v.  Sweeney,  33  Wash.  691,  74  Pac.  Rep. 
1001    (under  Ballinger's  Ann.  Codes  and  Stats.,  §  5907). 

Washington.  And  this  may  be  done  without  specifying  the  par- 
ticular house  for  which  the  materials  were  furnished,  where  they 
were  used  indiscriminately,  there  being  no  intervening  rights: 
Wheeler  v.  Ralph,  4  Wash.  617,  629,  30  Pac.  Rep.  709.  See  Merchant  v. 
Humeston,  2  Wash.  Ter.  433,  7  Pac.  Rep.  903;  Sullivan  v.  Treen.  13 
Wash.  261,  43  Pac.  Rep.  38;  and  see  §  406,  post.  But  see  Heald  v. 
Hodder,  5  Wash.  677,  32  Pac.  Rep.  728;  and  Powell  v.  Nolan,  27  Wash. 
318,  67  Pac.  Rep.  712,  720  (the  claim  showing  the  amount  due  on  each 
house). 


301  CLAIM    OP    LIEN.  §  369 

segregated  from  the  general  aggregate,  the  claim  is  fatally 
defective.*^  But  a  claim  for  materials  was  held  not  objection- 
able because  it  included  items  for  materials  used  in  building 
an  adjacent  sidewalk,  which,  under  the  circumstances  of 
the  case,  was  considered  a  part  of  the  building." 

§  369.     Same.    Various  items  of  labor  or  materials.    As  to 

the  items  of  labor,  neither  the  contractor  nor  a  subcontractor 
can,  from  time  to  time,  as  the  work  progresses,  file  successive 
claims  of  lien  for  work  done  under  an  entire  contract  for 
the  different  items  of  labor  or  material;  since  in  such  case 
but  one  lien  can  be  acquired."  So  where  a  section  of  a  rail- 
road is  graded  under  an  entire  contract,  the  contractor 
is  entitled  to  one  lien  to  be  filed  upon  the  whole  work,  and 
he  cannot  foreclose  a  lien  filed  before  the  completion  of  the 
work  on  a  portion  of  the  road,  because  he  was  prevented 
from  completing  the  contract.^*' 

Material-men  should  not  file  separate  claims  for  materials 
furnished  under  different  contracts  for  a  structure;  all  the 
materials  furnished  should  be  included  in  one  claim.'*^ 

"  McGlain  v.  Hutton,  131  CaL  132,  141,  61  Pac.  Rep.  273,  63  Id.  182, 
622. 

«  McGlain  v.  Hutton,  131  Cal.  132,  136,  63  Pac.  Rep.  182,  modifying 
s.   c.   61   Pac.   Rep.   273. 

«  Cox  V.  Western  Pac.  R.  Co.,  44  Cal.  18,  28;  Silvester  v.  Coe  Q.  M. 
Co.  80  Cal.  510,  512,  22  Pac.  Rep.  217;  Pacific  R.  M.  Co.  v.  Bear  V.  Irr. 
Co.,    120  Cal.   94,    98,   52   Pac.  Rep.   136,    65   Am.   St.   Rep.    158. 

Oregon.  See  Willamette  S.  M.  L.  &  M.  Co.  v.  Shea,  24  Oreg.  40 
32  Pac.  Rep.   759. 

4«  Cox  V.  Western  Pac.  R.  Co.,   47  Cal.  87,   89. 

As  to  employment  in  mine  by  tlie  month,  see  Maloiie  v.  Big  Flat  G. 
M.  Co.,  76  Cal.  578,  586,  18  Pac.  Rep.  772. 

See  "Time  of  Filing."  §  422,  post. 

As  to  application  o£  mechanics'  liens  to  railroads,  see  7  Am.  & 
Eng.    Ann.    Cas.    269-272. 

Nevada.  Capron  v.  Strout,  11  Nev.  304;  Skyrme  v.  Occidental  M.  & 
M.  Co.,  8  Nev.  219. 

"     •"  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,   106  Cal.   224,   236,   39   Pac.   Rep. 
758. 

.Montana.  But  where  a  party  performs  labor  for  another,  in  a 
case  where  he  would  be  entitled  to  a  lien  for  one  part  of  his  labor, 
and  not  for  the  remainder,  he  may  properly  charge  for  his  labor 
under  two  different  accounts:  Christnot  v.  Montana  G.  &  S.  M.  Co., 
1    Mont.    44. 

See  note   2   Am.   &   Eng.   Ann.   Cas.    689. 


§  370  mechanics'  liens.  302 


CHAPTER    XX. 

CLAIM  OF  LIEN  (CONTINUED).  CONTENTS  OP  CLAIM. 

§  370.  General  statement  as  to  contents  of  claim  of  lien. 

§  371.  Construction  of  claims.     General  principles. 

i  372.  Same.     General  rule  for  determination  of  sufficiency  of  claim. 

§  373.  Same.     What  generally  required. 

§  374.  Same.     Unnecessary  statements. 

§  375.  Statement  of  demand,  after  deducting  credits  and  offsets. 

S  376.  Same.     Object  of  provision  as  to  demand. 

§  377.  Same.     Commingling  lienable  and  non-lienable  items. 

§  378.  Same.     Demands  against  two  or  more  buildings. 

§  379.  Names  required  to  be  stated  in  claim.     In  general. 

§  380.  Same.     Name  of  owner  or  reputed  owner. 

§  381.  Same.     Employer.     Purchaser. 

§  382.  Same.     Under  void  statutory  original  contract. 

§  383.  Same.     Inferential  statements. 

§  384.  Same.     "  Causing  "  improvement. 

§  385.  Same.     Name  of  agent. 

§  386.  Same.     Two  or  more  employers  or  purchasers. 

§  387.  Terms,  time  given,  and  conditions  of  contract.     In   general. 

§  388.  Same.     Object  and  construction  of  provision. 

§  389.  Same.     General  rules. 

§  390.  Same.     Showing  contractual  indebtedness. 

§  391.  Same.     Setting  out  terms  of  original  contract. 

§  392.  Same.     Reference  to  other  papers. 

§  393.  Same.     Express  and  implied  agreement  as  to  price. 

§  394.  Same.     Items  of  account. 

§  395.  Same.     Nature  of  labor. 

§  396.  Same.     Dates. 

§  397.  Same.     "  Time  given." 

§  398.  Same.     "  Cash." 

§  399.  Description  of  property.     In  general. 

§  400.  Same.     Bona  fide  purchasers. 

§  401.  Same.     Object  of  provision. 

§  402.  Same.     General  rule. 

§  403.  Same.     Special  applications.     False  calls. 

§  404.  Same.     Property  identified  by  name  or  exclusive    character. 

§  405.  Same.     Description  as  including  too  much  or  too  little. 

§  406.  Same.     Two  or  more  descriptions.     Statutory  provision. 

§  407.  Same.     .Application  of  provision  as  to  demands  against  sepa- 
rate buildings. 


303  CONTEXTS   OF    CLAIM    OF    LIEN.  §  370 

§  408.  Claim  of  charge. 

§  409.  Signature. 

§  410.  Verification. 

§  411.  Uncertainty  in  claim. 

§  412.  Mistake  and  error  in  claim. 

§  413.  Same.     Unnecessary  statements. 

§  414.  Same.     Other  illustrations. 

§  415.  Amendment  of  claim. 

§  370.     General  statement  as  to  contents  of  claim  of  lien. 

The  claim  of  lieu  must  coutaiu  a  correct  statemeut  of  the 
facts  required  by  the  statute/  and  unless  the  claim  is  so 
stated,  no  lien  can  be  enforced.^  The  California  statute  ^ 
merely  defines  the  classes  which  are  entitled  to  the  liens 
therein  provided  for,  and  does  not  purport  to  prescribe  the 
contents  of  the  claim  to  a  lien  which  is  to  be  filed.     What 

>  General    statutory    re«iuireiiients    held    sufficient: 

Alaska.  See  Jorgensen  v.  Sheldon,  2  Alas.  607,  609  (under  Code, 
§266). 

Idaho.  See  Robertson  v.  Moore,  10  Idaho  115,  77  Pac.  Rep.  218 
(under  Sess.  Laws  1899,  p.  148,  §  6). 

3ie\v  Mexico.     See  Pearce  v.  Albright,  76  Pac.  Rep.  286. 

Oklahoma.  See  Ferguson  v.  Stephenson-Brown  L>.  Co.,  14  Okl.  148, 
77    Pac.    Rep.    184. 

Utah.  See  Culmer  v.  Caine,  22  Utah  216,  61  Pac.  Rep.  1008  (under 
Sess.   Laws   1890,   ch.   xxx). 

Washington.  See  Fitch  v.  Applegate,  24  Wash.  25,  31,  64  Pac.  Rep. 
147   (on  saw-mills,  etc.,  under  act  of  March   6,  1897). 

2  Santa  Monica  L.  &  M.  Co.  v.  Hege,  119  Cal.  376,  380,  51  Pac.  Rep. 
555;  Madera  F.  &  T.  Co.  v.  Kendall,  120  Cal.  182,  184,  52  Pac.  Rep.  304, 
65  Am.  St.  Rep.  117. 

See  •■  Variance,"  §§  835  et  seq.,  post. 

New  Mexico.  "  No  particular  form  of  statement  is  required.  All 
that  is  necessary  is  that  the  language  used  in  the  statement  shall 
convey  and  express  in  an  intelligent  manner  the  meaning  and  intent 
of  the  statute":  Ford  v.  Springer  L.  Assoc,  8  N.  M.  37,  50,  41  Pac. 
Rep.  541;  Minor  v.  Marshall,   6  N.  M.  194,   199,  27  Pac.  Rep.  481. 

Oregon.  Williams  v.  Toledo  C.  Co.,  25  Greg.  426,  36  Pac.  Rep.  159, 
42  Am.   St.   Rep.   799. 

Whatever  the  statute  makes  necessary  to  the  existence  of  the  lien 
must  be  complied  with,  in  order  to  obtain  the  benefit  of  its  pro- 
visions. The  court  cannot,  by  construction,  dispense  with  any  of  the 
requirements  of  the  statute;  and  one  who  claims  the  benefit  of  its 
provisions  must  show  a  clear  compliance  with  tlie  terms  of  the 
statute:  Gordon  v.  Deal,  23  Oreg.  153,  31  Pac.  Rep.  287,  citing  Pilz  v. 
Killingsworth,  20  Oreg.  432,  26  Pac.  Rep.  305;  Rankin  v.  Malarkey,  23 
Oreg.   593,  32  Pac.   Rep.  620,   34  Id.   816. 

Utah.  Morrison  v.  Willard,  17  Utah  306,  53  Pac.  Rep.  832,  70  Am. 
St.    Rep.    784. 

Washington.     McHugh  v.  Slack,   11    Wash.  370,  372,  39  Pac.  Rep.  674. 
>  Kerr's  Cyc.  Code  Civ.  Proc,   §  1183. 


§  370  mechanics'  liens.  304 

the  claim  must  contain  is  prescribed  by  another  section  of 
the  code,*  and  nothing  is  required  to  be  stated  which  is  not 
set  forth  in  the  provisions  of  the  statute  as  to  such  claim  of 
lien.^ 

Such  claims  are  often  made  out  on  a  blank  form  by  the 
claimant,  or  some  friend  or  person  not  versed  in  the  law,  and 
are  surrounded  with  sufficient  difficulties  and  obstacles  by- 
requiring  that  the  statute  be  substantially  complied  with, 
without  imposing  terms  and  conditions  not  required  by  the 
statute/' 

Statement  of  claim  need  not  contain  all  the  facts.  It  is  not 
required,  therefore,  that  the  claim  shall  contain  a  statement 
of  all  the  facts  essential  to  establish  the  lien ;  '^  whether,  for 

*  Kerr's   Cye.   Code   Civ.   Proc.,    §  1187. 

5  Jewell  V.  McKay,  82  Cal.  144,  146,  150,  23  Pac.  Rep.  139;  Corbett  v. 
Chambers,  109  Cal.  178,  180,  41  Pac.  Rep.  873;  Slight  v.  Patton,  96 
Cal.  384,   386,   31  Pac.  Rep.   248.     See  §§  362  et  seq.,  ante. 

Twofold  character  of  claim  to  lien.  It  is  said  in  Union  L.  Co.  v. 
Simon  (Cal.  App.),  89  Pac.  Rep.  1077,  1078,  that  claim  has  a  twofold 
character.  "  It  must  contain  a  statement  of  the  facts  which  the 
statute  prescribes  for  the  creation  of  the  lien,"  and  it  must  contain 
a  description  of  the  property  to  be  charged  with  the  lien.  This 
statement  is  certainly  not  in   line  with   the  authorities. 

Colorado.  The  claim  must  contain  all  that  the  law  requires,  but  it 
need  not  contain  more:  Sprague  I.  Co.  v.  Mouat  L.  &  I.  Co.,  14  Colo. 
App.  107,  60  Pac.  Rep.  179,  181. 

New  Mexico.     See  Post  v.  Miles,   7  N.  M.   317,   325,   34   Pac.  Rep.   586 

Oregon.  Allen  v.  Elwert,  29  Oreg.  428,  44  Pac.  Rep.  823,  48  Id.  54 
(under  Hill's  Code,  §  3669).  See  Osborn  v.  Logus,  28  Oreg.  302,  319,  38 
Pac.  Rep.  190,  42  Id.  997;  Hughes  v.  Lansing,  34  Oreg.  118,  55  Pac. 
Rep.   95,   96,   75  Am.  St.  Rep.   574. 

When  claim  contains  all  facts  required  by  statute,  the  question  as 
to  whether  the  claimant's  demand  will  in  fact  support  the  lien  is  a 
matter  of  allegation  and  proof:  Allen  v.  Elwert,  29  Oreg.  428,  44  Pac. 
Rep.  823,  42  Id.  997   (under  Hill's  Code,  §  3669). 

Utah.     Brubaker  v.   Bennett,   19  Utah   401,   57   Pac.   Rep.   170. 

Washington.  But  see  McHugh  v.  Slack,  11  Wash.  370,  372,  39  Pac. 
Rep.    674. 

"  Castagnetto  v.  Coppertown  M.  &  S.  Co.,  146  Cal.  329,  332,  80  Pac. 
Rep.  74. 

'  Corbett  v.  Chambers,  109  Cal.  178,  183,  41  Pac.  Rep.  873;  Castag- 
netto V.  Coppertown  M.  &  S.  Co.,  146  Cal.  329,  332,  80  Pac.  Rep.  74; 
Ah   Louis  V.   Harwood,   140  Cal.   500,   504,   74   Pac.   Rep.   41. 

Washington.  Contra:  See  Heald  v.  Hodder,  5  Wash.  677,  32  Pac. 
Rep.  728  (wliich  held,  under  the  statute  then  in  force,  that  the  claim 
should  set  forth  sufficient  to  show  prima  facie  that  the  lien  can  be 
enforced,  and  to  enable  a  searcher  of  titles  to  ascertain  therefrom 
whether  or  not  the  facts  exist  which  will  warrant  the  enforcement 
of  the  lien);  Johnston  v.  Harrington,  5  Wash.  73,  80,  31  Pac.  Rep.  316 
(where  it  was  held  to  be  necessary  to  state  the  time  of  furnisning 
the  last  materials;  and  the  statement  in  the  notice  of  lien,  that  "the 


305  CONTENTS   OF    CLAIM    OF    LIEN.  §  371 

instance,  the  facts  being  truly  stated,  as  required  by  the 
statute,  the  person  in  possession  of  the  property  or  the  person 
by  whom  the  laborer  was  employed  had  authority  to  bind  the 
owner,  as  agent,  is  a  matter  for  allegation  and  proof  at  the 
trial.^ 

Contents  of  notice  to  owner,  allowed  by  the  statute,"  are 
not  necessarily  those  required  in  the  claim  of  lien  which  is  to 
be  filed  with  the  recorder/" 

§  371.  Construction  of  claims.  General  principles.  It  is 
intended  here  to  consider  only  the  general  principles  of  the 
construction  of  claims  of  lien,  leaving  specific  instances  of 
construction  to  various  subheads  subsequent.^^  The  claim 
must  be  construed  as  a  whole,  and  even  the  verification  will 
be  considered  in  connection  wnth  the  other  matter  contained 
in  the  claim. ^- 

Substantial  compliance.  Liberal  construction.  A  sub- 
stantial compliance  with  the  statute  as  to  the  claim  of  lien  is 
all  that  is  required.^^    It  has  been  said  that  the  provisions  of 

lien  claim  is  filed  within  thirty  days  from  the  date  of  ceasing  to  fur- 
nish said  materials,"  would  alone  be  sufficient).  See  also  Tacoma  L. 
&  Mfg.  Co.  V.  Kennedy,  4  Wash.  305,  30  Pac.  Rpe.  79;  Warren  v.  Quade, 
3  Wash.  750,  29  Pac.  Dep.  827. 

■^  Castagnetto  v.  Coppertown  M.  &  S.  Co.,  146  Cal.  329,  332,  80  Pac. 
Rep.   74. 

»  Kerr's   Cye.  Corte  Civ.  Proc,   §  1184. 

^0  Jewell  V.  McKay,  82  Cal.   144,   149,   23  Pac.  Rep.   139. 

As  to  contents  of  notice  to  owner,  under  §  1184,  Kerr's  Cyc.  Code 
Civ.  Proc,  see  "Purpose  of  Claim,"  §365,  ante;  "Notice,"  §§547  et 
seq.,    post. 

"  See  Newell  v.  Brill,  2  Cal.  App.  61,  63,  83  Pac.  Rep.  76. 

See  also  §  29,  ante,  and  §  411,  post. 

Colorado.     See   Sickman  v.   W^ollett,   31   Colo.    58,   71   Pac.   Rep.   1107. 

"  See  Jones  v.  Kruse,  138  Cal.  613,  617,  72  Pac.  Rep.  146;  and  see 
Newell   V.   Brill,    2   Cal.   App.    61,    63,    S3   Pac.    Rep.   76.  ^ 

See  §  410,  post. 

AVasliinsfon.  The  claim  must  be  construed  as  a  whole:  Sautter  v. 
McDonald.    12   Wash.   27,   30,   40  Pac.   Rep.   418. 

'3  Castagnetto  v.  Coppertown  M.  &  S.  Co.,  146  Cal.  329,  332,  80  Pac. 
Rep.  74;  W^ood  v.  W^rede,  46  Cal.  637,  638  (employer)-,  Hooper  v.  Flood, 
54  Cal.  218,  221  (name  of  owner  or  reputed  owner,  and  terms,  time 
given,  and  conditions  of  contract);  Blackman  v.  Mariscano,  61  Cal. 
638,  640  (terms,  time  given,  and  conditions  of  contract);  Tredinnick  v. 
Red  Cloud  Consol.  M.  Co..  72  Cal.  78,  80.  13  Pac.  Rep.  152  (terms,  time 
given,  and  conditions  of  contract;  the  court  even  saying,  in  this  case, 
that  the  claim  should  be  liberally  construed);  W'agner  v.  Hansen, 
103  Cal.  104.  107,  37  Pac.  Rep.  195  (terms  of  contract);  Hagman  v.  W'il- 
liams,  88  Cal.  143,  151.  25  Pac.  Rep.  1111;  Russ  L.  &  M.  Co.  v.  Garrett- 
Mech.  Liens  —  20 


§  371  mechanics'  liens.  306 

the  code  relative  thereto  are  to  be  liberally  construed,  with 
a  view  to  effect  their  objects  and  to  promote  justice ;  ^*  and 

son,  87  Cal.  589,  595,  25  Pac.  Rep.  747;  Stimson  M.  Co.  v.  Riley  (Cal.. 
Dec.  20,  1895),  42  Pac.  Rep.  1072  (terms  of  contract:  payment); 
Phelps  V.  Maxwell's  Creek  G.  M.  Co.,  49  Cal.  336,  339  (names  of  owner 
and  reputed  .owner,  and  person  to  whom  materials  were  furnished); 
Rauer  v.  Fay,  40  Cal.  361,  42  Pac.  Rep.  902.  See  California  P.  W.  v. 
Blue  Tent  Consol.  H.  G.  M.  Co.  (Cal.,  Oct.  8,  1889),  22  Pac.  Rep.  391 
(terms,  time  given,  and  conditions  of  contract);  Harmon  v.  Ashmead, 
68  Cal.  321,  324,   9  Pac.  Rep.   183. 

Alaska.  Jorgensen  Co.  v.  Sheldon,  2  Alas.  607,  610;  Russell  v. 
Hayner,  2  Alas.  702   (dig.),  130  Fed.  Rep.  90,  64  C.  C.  A.  424. 

Colorado.     Cannon  v.  Williams,   14  Colo.  21,  23  Pac.  Rep.  456. 

Statute  must  be  strictly  pursued;  and  to  create  the  lien,  the  pro- 
visions must  be  specifically  and  accurately  followed:  Rice  v.  Car- 
michael,  4  Colo.  App.  84,  34  Pac.  Rep.  1010;  Harris  v.  Harris,  9  Colo. 
App.   211,   219,   47   Pac.  Rep.   841. 

Montana.  McGlauflin  v.  Wormser,  28  Mont.  177,  72  Pac.  Rep.  428 
(holding  that  in  so  far  as  the  granting  of  the  lien  is  concerned,  the 
statute  is  remedial  in  character,  and  should  be  liberally  construed,  but 
in  so  far  as  the  procedure  is  concerned  by  which  the  lien  is  claimed 
and  enforced,  the  statute  should  be  strictly  followed;  but  this  decis- 
ion is  against  the  weight  of  authority).  See  also  Yerrick  v.  Higgins, 
22   Mont.    502,   57   Pac.   Rep.    95,    98. 

Nevada.  Maynard  v.  Ivey,  21  Nev.  241,  245,  29  Pac.  Rep.  1090;  Mal- 
ter  V.  Falcon  M.  Co.,  18  Nev.  209,  2  Pac.  Rep.  50;  Skyrme  v.  Occidental 
M.  &  M.  Co.,  8  Nev.  219. 

New  Mexico.  Ford  v.  Springer  L.  Assoc,  8  N.  M.  37,  47,  41  Pac. 
Rep.  541,  affirmed  168  U.  S.  513,  bk.  42  L.  ed.  562,  18  Sup.  Ct.  Rep.  170; 
Post  V.  Miles,  7  N.  M.  317,  323,  34  Pac.  Rep.  586. 

Oklahoma.  Ferguson  v.  Stephenson-Brown  L.  Co.,  14  Okl.  148,  77 
Pac.    Rep.    184. 

Oregon.  Osborn  v.  Logus,  28  Oreg.  302,  319,  38  Pac.  Rep.  190,  42 
Pac.  Rep.  997;  Rankin  v.  Malarkey,  23  Oreg.  593,  597,  32  Pac.  Rep.  620, 
34  Pac.  Rep.  816;  Gordon  v.  Deal,  23  Oreg.  153,  155,  31  Pac.  Rep.  287; 
Pilz  V.  Killingsworth,  20  Oreg.  432,  435,  26  Pac.  Rep.  305;  Allen  v. 
Rowe,  19  Oreg.  188,  190,  23  Pac.  Rep.  901;  Williams  v.  Toledo  C.  Co., 
25  Oreg.   426,   431,   36  Pac.  Rep.   159,  42   Am.  St.   Rep.   799. 

Claim  filed  must  slio>v  what.  While  the  act  relating  to  mechanics' 
liens  should  be  liberally  construed,  it  is  essential  to  the  validity  of  the 
lien  that  the  claim  filed  shall  show  vipon  its  face  a  substantial  com- 
pliance with  the  provisions  of  the  law,  and  none  of  the  essential 
requirements  of  the  statute  can  be  dispensed  with:  Nicolai  Bros.  Co. 
v.  Van  Fridagh,  23  Oreg.  149,  31  Pac.  Rep.  288. 

rtah.  Morrison  v.  Willard,  17  Utah  306,  53  Pac.  Rep.  832,  70  Am.  St. 
Rep.    784. 

"  Newell  V.  Brill,  2  Cal.  App.  61,  62,  83  Pac.  Rep.  76;  Tredinnick  v. 
Red  Cloud  Consol.  G.  M.  Co.,   72  Cal.   78,   80,   13  Pac.  Rep.   152. 

See  Kerr's  Cyc.  Code  Civ.  Proc.,  §  4. 

Compare:  §§  24  et  seq.,  ante. 

Montana.  All  that  the  statute  requires  is  that  a  person  wishing 
to  avail  himself  of  the  benefit  of  it  shall  honestly  state  his  account: 
Smith  V.  Sherman  M.  Co.,  12  Mont.  524,  31  Pac.  ftep.  72;  Black  v. 
Appolonio,   1   Mont.    342,    346. 

Nevada.  Maynard  v.  Ivey,  21  Nev.  241,  244,  29  Pac.  Rep.  1090; 
Skyrme    v.    Occidental    M-.    &    M.    Co.,    8    Nev.    221;    Hunter    v.    Truckee 


307  CQNTENTS   OF    CLAIM    OF    LIEN.  §  371 

substance,  rather  than  form,  is  to  be  regarded.^'^  In  this 
connection,  the  court  said :  "  We  are  certainly  not  disposed 
to  defeat  the  lien  by  a  nice  criticism  of  the  language  in  which 
the  claim  is  set  forth."  ^^ 

Strict  construction  when.  But,  on  the  other  hand,  the 
court  is  not  at  liberty  to  upliold  a  claim  of  lieu  in  the  face  of 
&  total  omission  to  comply  with  the  plain  requirements  of  the 
act.^'  AVhile  the  rule  of  substantial  compliance  above  stated 
is  declared  for  the  purpose  of  effecting  a  lien,  the  provision 
of  the  statute  ^'^  relating  to  the  forfeiture  of  liens  for  wilfully 
false  claims,  etc.,  is  penal  in  its  character,  and  must  be 
strictly  construed,'"  and  every  reasonable  intendment  is  in- 
dulged to  avoid  such  penalties.'" 

There  is  but  one  rule  for  all  claimants,  it  has  been  held, 
whether  they  be  intermediate  or  not,  and  that  rule  must  be 
determined  in  view  of  all  the  cases  likely  to  arise  under  the 
statute.-^ 

Lodge,  14  Nev.  24,  28;  Lonkey  v.  Wells,  16  Nev.  271,  274;  Malter  v. 
Falcon  M.  Co.,  18  Nev.  212,   2  Pac.  Rep.  50. 

Oregon.      See  note  1,  ante,  this  section. 

\Vu.sliington.  See  Powell  v.  Nolan,  27  Wash.  318,  67  Pac.  Rep.  712, 
719. 

1^  Castag-netto  v.  Coppertown  M.  &  S.  Co.,  146  Cal.  329,  333.  80  Pac. 
74;  Corbett  v.  Chambers,  109  Cal.  178,  184,  41  Pac.  Rep.  873;  McGinty 
V.  Morgan,  122  Cal.  103,  105,  54  Pac.  Rep.  392;  Castagnetto  v.  Cop- 
pertown M.  &  S.  Co.,  146  Cal.  329,  334,  80  Pac.  Rep.  74;  Maconiber  v. 
Bigelow,    126    Cal.    9,    16,    58    Pac.    Rep.    312. 

New  Mexico.  Hobbs  v.  Spiegelberg-,  3  N.  M.  357,  5  Pac.  Rep  529 
(1880). 

"  Wood  V.  Wrede,  46  Cal.  637,  638;  Malone  v.  Big  Flat  G.  M.  Co., 
76  Cal.  578,  585,  18  Pac.  Rep.  772.  See  Castagnetto  v.  Coppertown 
M.  &  S.  Co.,   146  Cal   329,   333.   80  Pac.  Rep.   74. 

"  Wood  V.  Wrede,  46  Cal.  637,  638. 

Nevada.  The  omissions  cannot,  in  essential  particulars,  be  aided 
by  any  averments  of  the  complaint,  or  by  extrinsic  evidence:  Malter  v. 
Falcon  M.  Co.,   18  Nev.  209,  213,   2  Pac.  Rep.  50. 

'New  Mexico.  See  Ford  v.  Springer  L.  Assoc,  8  N.  M.  37,  49,  41  Pac. 
Rep.  541. 

• '«  Kerr's    Cye.    Code    Civ.    Proc,    §  1187. 

'»  Schallert-Ganahl  L.  Co.  v.  Neal,  91  Cal.  362,   365,   27  Pac.  Rep.   743. 

See  "Forfeiture,"  §§  632  et  seq.,  post. 

-"  Stimson  M.  Co.  v.  Riley    (Cal.,   Dec.   20.   1895),  42   Pac.  Rep.   1072. 

"  Wagner  v.  Hansen,  103  Cal.  104,  108,  37  Pac.  Rep.  195;  McGinty  v. 
Morgan,  122  Cal.  103,  54  Pac.  Rep.  392. 

But  see  §§  28  et  seq.,  and  §  42,  ante. 

And  see  "  Contract,"   §§  387  et  seq.,  post. 

WashiiijKton.  United  States  Sav.  L.  &  Bldg.  Co.  v.  Jones,  9  Wash. 
434,  440,  37  Pac.  Rep.  666. 


§§  372, 373  mechanics'  liexs.  308 

§  372.  Same.  General  rule  for  determination  of  suffi- 
ciency of  claim.  In  order  to  determine  whether  a  claim  of 
lien  is  sufficient,  it  is  only  necessary  to  compare  its  terms 
with  the  language  of  the  statute  which  provides  for  the 
claim.  The  requirements  made  by  the  statutes  in  many  other 
states  differ  from  those  required  in  California,  and,  as  it  is 
only  necessary  to  consider  the  requirements  of  the  particular 
act,  the  value  of  decisions  under  different  statutes  depends 
upon  the  relative  similarity  of  the  same.^- 

§  373.  Same.  What  generally  required.  The  claim  need 
not  state  what  is  implied  by  law,^^  although  it  is  thought  that 
conclusions  of  law  may  be  stated,  under  certain  circum- 
stances.^* 

With  reference  to  the  fullness  of  the  statements,  it  has 
been  said:  "  We  cannot  think  that  the  statements  in  a  notice 
[claim]  of  lien  are  required  to  be  made  with  greater  full- 
ness or  formality  than  is  necessary  in  a  pleading.  We  are 
not  prepared  to  say  that  as  much  fullness  or  formality  is  re- 
quired." -° 

=2  Corbett  v.  Chambers,  109  Cal.  178,  180,  41  Pac.  Rep.   873. 

Colorado.  The  statement  must  contain  aU  that  the  law  requires  it 
to  contain,  but  it  need  not  contain  anything  more;  and  there  is  no 
reason,  outside  of  the  statute,  why  the  statement  should  show  the 
time  of  furnisliing  any  material,  first  or  last:  Mouat  L.  Co.  v.  Free- 
man,  7  Colo.  App.   152,  42  Pac.  Rep.   1040   (1883,   1889). 

^  Jewell  V.  McKay,  82  Cal.  144.  152,  23  Pac.  Rep.  139. 

See  §  374,  post. 

Colorado.     See  Small  v.  Foley,  8  Colo.  App.  435,  439,  47  Pac.  Rep.  64. 

Washin^on.  See  Fairhaven  L,.  Co.  v.  Jordan,  5  Wash.  729,  734,  32 
Pac.  Rep.  729   (Gen.  Stats.,  §  1667). 

^  In  McDonald  v.  Backus,  45  Cal.  282,  265,  it  was  held  that  the  pro- 
vision as  to  "  the  name  of  the  person  by  whom  he  was  employed,  or  to 
whom  he  furnished  the  materials."  is  intended  to  be  a  statement  of  a 
fact,  and  not  of  a  mere  conclusion  of  law;  but  in  Malone  v.  Big  Flat 
G.  M.  Co.,  76  Cal.  578,  584,  18  Pac.  Rep.  772,  the  court  say,  in  reference 
to  this  decision:  "Possibly  that  case  was  correctly  decided.  We 
express  no  opinion  as  to  it.  But  we  do  not  think  that  the  broad  state- 
ment as  to  conclusions  of  law  can  be  maintained.  .  .  .  But  we  should 
prefer  not  to  lay  down  any  rule  about  facts  and  conclusions  of  law. 
And  in  this  connection  we  may  say,  as  was  said  in  Wood  v.  Wrede, 
46  Cal.  637,  638,  that  '  we  are  certainly  not  disposed  to  defeat  a  lien  by 
a  nice  criticism  of  the  language  in  which  the  clairn  is  set  forth.'  " 

AA'ashington.  See  Collins  v.  Snoke,  9  Wash.  566,'  570,  38  Pac.  Rep. 
161. 

2-'  Jewell  V.  McKay,  82  Cal.  144,  151,  23  Pac.  Rep.  139. 

Colorado.     Branham  v.  Nye,  9  Colo.  App.  19,  47  Pac.  Rep.  402. 


309  CONTENTS   OP    CLAIM    OF    LIEN.  §  -ST-l 

Truth  of  statements.  Subject  to  the  limitations  as  to 
errors  and  mistakes  hereafter  to  be  stated,-*^  the  claim  must 
be  true  in  all  essential  particulars.-^ 

Variance.  But  a  variance  from  the  strict  requirements  of 
the  statute,  which  is  not  a  substantial  one,  and  which  does 
not  injure  or  prejudice  any  one,  will  not  invalidate  the  claim 
of  lien.^^ 

§  374.  Same.  Unnecessary  statements.  Some  of  the  gen- 
eral principles  determining  what  it  is  unnecessary  to  state  in 
the  claim  of  lien  are  elsewhere  considered.-^ 

Implications  of  law.  Contract.  It  has  been  said  by  the 
court:  "The  code  does  not  require  the  notice  [claim]  to 
state  implications  made  by  law.^'*'  For  example,  if  there  was 
nothing  but  a  request  for  labor  or  materials,  and  a  silent 
compliance  with  it,  we  do  not  think  that  a  statement  of  the 
implied  promise  to  pay  what  the  labor  or  materials  were  rea- 
sonably worth  would  be  necessary.  .  .  .  Nor  do  we  think 
that  it  is  necessary  to  state  facts  showing  a  performance  of 
the  contract,  or  other  facts  necessary  to  complete  the  cause 
of  action.  For  example,  in  the  cases  above  put,  it  would  not 
be  necessary  to  state  that  the  labor  or  materials  were  in  fact 
furnished  as  provided  by  the  contract,  or  that  they  were 
reasonably  worth  the  sum  claimed.  The  statute  does  not 
require  the  notice  [claim]  to  state  anything  subsequent  to  or 
outside  of  the  contract."  ^^ 

Knowledge  of  owner.  It  is  not  necessary  to  state  in  the 
claim  that  the  owner  of  the  land  had  personal  or  actual 

2«  See  §§  389,  412  et  seq.,  post. 

"  Wagner  v.  Hansen,  103  CaL  104,  107,  37  Pac.  Rep.  195;  Santa 
Monica  L.  &  M.  Co.  v.  Hege,  119  Cal.  376,  381,  51  Pac.  Rep.  555. 

Utah.  Morrison  v.  Willard,  17  Utah  306,  53  Pac.  Rep.  832,  70  Am.  St. 
Rep.  784. 

^  See  Ward  v.  Crane,  118  Cal.  676.  50  Pac.  Rep.  S39. 

See  "Names,"  §§  379  et  seq.,  post;    "Variances,"  |§  835  et  seq..  post. 

=»  See  §§  370-373,  ante. 

30  Jewell  V.  McKay,  82  Cal.  144,  152,  23  Pac.  Rep,  139.  See  Reed  v. 
Norton,  90  CaL  590,  597.  26  Pac.  Rep.  767,  27  Pac.  Rep.  426. 

Oreeon.  See  Osborn  v.  Logus,  28  Oreg.  302,  320,  38  Pac.  Rep.  190.  42 
Id.  997.  But  see  Getty  v.  Ames.  30  Oreg.  573,  577,  48  Pac.  Rep.  355,  60 
Am.  St.  Rep.   835. 

"  See  §  373,  ante. 


§  374  mechanics'  liens.  310 

knowledge  that  the  work  was  being  done,  nor  anything  about 
the  knowledge  of  the  owner.^- 

Contractual  relation  with  owner.  Neither  is  it  necessary 
to  show  any  contractual  or  other  relation  between  the  owner 
of  the  property,  or  the  person  named  as  owner,  and  the  em- 
ployer or  the  person  to  whom  the  materials  were  furnished ;  ^^ 
nor  whether  the  latter  had  authority  to  bind  the  owner,  or  to 
entitle  him  to  create  a  lien.^* 

Other  statements.  It  is  not  necessary  to  set  forth  the  title 
of  the  employer,  nor  the  relation  between  the  person  in  pos- 
session and  the  owner,  which  would  often  be  beyond  the 
knowledge  of  the  claimant,  and  difficult,  if  not  impossible,  to 
ascertain ;  ^^  nor  the  date  of  the  completion  of  the  work  or 
structure ;  ^®  nor  that  the  claim  was  filed  within  thirty  days 

32  Jewell  V.  McKay,  82  Cal.  144,  146,   23  Pac.  Rep.   1.^9. 

New  Mexico.  Springer  L.  Assoc,  v.  Ford,  168  U.  S.  513,  bk.  42  L.  ed. 
562,   18  Sup.  Ct.  Rep.  170,  citing  the  California  case. 

Washington.  Nor  that  the  owner  caused  the  building  to  be 
erected:    Seattle  L.  Co.  v.  Sweeney,  33  Wash.  691.  74  Pac.  Rep.  1001. 

33  Corbett  v.  Chambers,  109  Cal.  178,  183,  41  Pac.  Rep.  873;  Davies- 
Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641,  646,  22  Pac.  Rep.  860;  Cas- 
tagnetto  v.  Coppertown  M.  &  S.  Co.,  146  Cal.  329,  332.  80  Pac.  Rep.  74. 

See  §§  390,  391,  post. 

Xew  Mexico.  Post  v.  Miles,  7  N.  M.  317,  34  Pac.  Rep.  586;  Springer 
L.  Assoc.  V.  Ford.  168  U.  S.  513,  bk.  42  L.  ed.  562,  18  Sup.  Ct.  Rep.  170. 

Oregon.  Osborn  v.  Logus,  28  Oreg.  302,  320,  38  Pac.  Rep.  190,  42  Id. 
997,  overruling  Rankin  v.  Malarkey,  23  Oreg.  593,  32  Pac.  Rep.  620,  34 
Id.  816;  Curtis  v.  Sestanovich,  26  Oreg.  107,  37  Pac.  Rep.  67;  Willam- 
ette S.  M.  L.  &  M.  Co.  V.  McL,eod,  27  Oreg.  272,  40  Pac.  Rep.  93. 

Utah.  Nor  the  conditions  of  the  contract  between  the  subcontractor 
and  the  original  contractor;  nor  that  the  several  contracts  shall  be 
separately  stated:  Culmer  v.  Caine,  22  Utah  216,  61  Pac.  Rep.  1008, 
1009   (under  §§  10,  15,  17,  ch.  xxx.  Laws  1890). 

VVasUington.  Seattle  L.  Co.  v.  Sweeney,  33  Wash.  691,  74  Pac.  Rep. 
1001  (under  2  Ballinger's  Ann.  Codes  and  Stats,  §  5904,  which  pre- 
scribed a  form  of  claim,  and  a  line  of  authorities  under  preceding 
statutes,  no  longer  being  authority).  See  Young  v.  Borzone,  26  Wash. 
4,  66  Pac.  Rep.  135,  421. 

I'nder  act  o£  1893,  it  was  no  longer  necessary  to  set  forth  the  terms 
of  the  contract:    Greene  v.  Finnell,  22  Wash.  186,  60  Pac.  Rep.  144. 

^  Castagnetto  v.  Coppertown  M.  &  S.  Co.,  146  Cal.  329,  332,  80  Pac. 
Rep.  74;  Davies-Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641,  646,  22 
Pac.  Rep.  860. 

Oregon.  Osborn  v.  Logus,  28  Oreg.  302,  320,  38  Pac.  Rep.  190,  42  Id. 
997. 

It  is  a  matter  of  pleading  and  proof  at  the  trial:  Osborn  v.  Logus, 
supra. 

35  Castagnetto  v.  Coppertown  M.  &  S.  Co.,  146  Cal.  329,  332,  80  Pac. 
Rep.  74. 

3«  Slight  V.  Patton,  96  Cal.  384,  387,  31  Pac.  Rep.  248. 

Oregon.  Curtis  v.  Sestanovich,  26  Oreg,  107,  37  Pac.  Rep.  67,  fol- 
lowing Slight  V.  Patton,  supra. 


II 


311  CONTENTS   OF    CLAIM    OF    LIEN.  §  374 

from  its  completion ; ""'  nor  that  the  building  has  been  com- 
pleted ;  2«  nor,  it  seems,  the  date  of  the  contract ;  ■''■'  nor  any 
time  when  the  contract  was  made,  or  when  any  transaction 
took  place  between  the  parties;  "  nor  the  time  of  payment,  or 
time  agreed  for  the  completion  of  the  contract,  when  none  is 
expressly  fixed ;  "  nor  that  the  labor  was  done  or  materials 
furnished  for  the  particular  property;*^  nor  that  the  mate- 
rials were  to  be  used,*^  or  were  actually  used,  in  the  build- 
ing." Neither  is  it  necessary  to  state  in  the  claim  that  the 
work  done  under  section  eleven  hundred  and  ninety-one  of 

3'   Slight  V.  Patton,  96  Cal.  384,  387,  31  Pac.  Rep.  248. 
3s  Harmon  v.  Ashmead,  68  Cal.  321,  323,  9  Pac.  Rep.  183. 
3"  See    Hicks    v.    Murray,    43    Cal.    515,    523     (dissenting-    opinion    of 
Crockett,  J.),  and  Davis  v.  Livingston,  29  Cal.  283,  287   (1862). 

Nevada.     But  see  Hunter  v.  Truckee  Lodge,  14  Nev.  24,  31   (187o). 
Oregon.     Allen  v.  Elwert,  29  Oreg.  428,  44  Pac.  Rep.  823,  48  Id.  54. 
Utah.     Contra:    Morrison  v.  Willard,   17  Utah   306,   53  Pac.  Rep.  832, 
70  Am.  St.  Rep.  784. 

Washington.  See  contra:  Tacoma  L.  &  M.  Co.  v.  Kennedy,  4  Wash. 
305,  30  Pac.  Rep.  79. 

■"'  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  109  Cal.  566,  569,  42  Pac.  Rep. 
154;  California  Powder  Works  v.  Blue  Tent  Consol.  H.  G.  M.  Co.  (Cal., 
Oct.  8,  1889),  22  Pac.  Rep.  391. 

Colorado.  Under  acts  of  1889  and  1893  it  was  not  necessary  to  set 
forth  the  dates  when  the  first  and  last  materials  were  furnished: 
Sprag-ue  L  Co.  v.  Mouat  L.  &  L  Co.,  14  Colo.  App.  107,  60  Pac.  Rep.  179, 
Ibl. 

"  California  P.  W.  v.  Blue  Tent  Consol.  H.  G.  M.  Co.  (Cal.,  Oct.  8, 
1889),   22  Pac.   Rep.  391. 

Colorado.  So  of  time  of  furnishing  first  and  last  materials:  Mouat 
L.  &  I.  Co.  V.  Freeman,  7  Colo.  App.  152,  42  Pac.  Rep.  1040. 

Oregon.  Nottingham  v.  McKendrick,  38  Oreg.  495,  63  Pac.  Rep.  822, 
57  Id.  195. 

Washington.     Time     when     claimant     ceased     to     furnish     material 
should  be  stated:  Johnston  v.  Harrington,  5  Wash.  73,  31  Pac.  Rep.  316. 
«  Hills  V.  Ohlig,   63  Cal.  104. 
See   §  397,  post. 

Washington.  Fairhaven  L.  Co.  v.  Jordan,  5  Wash.  729,  734,  32  Pac. 
Rep.   729    (Gen.   Stats.,   §  1667). 

^3  Gordon  v.  South  Fork  C.  Co.,  1  McAl.  513,  10  Fed.  Cas.  817. 
Nevada.     Nor  is  it  necessary  to  specify  the  particular  kind  of  work: 
Maynard  v.  Ivey,  21  Nev.  241,  29  Pac.  Rep.  1090. 
■    Oregon.     See  Dillon  v.  Hart,  25  Oreg.  49,  34  Pac.  Rep.  817. 

Utah.  Contra:  Morrison  v.  Willard,  17  Utah  306,  53  Pac.  Rep.  832, 
70  Am.  St.  Rep.  784. 

"  Neihaus    v.    Morgan    (Cal.,    June    2,    1896),    45    Pac.    Rep.    255.      See 
Ti')betts  V.  Moore.  23  Cal.  208,  215   (1856). 
And  see  §§  375  et  seq.,  post. 

Utah.  Contra:  Morrison  v.  W^illard,  17  Utah  306,  53  Pac.  Rep.  832, 
70  Am.  St.  Rep.  784. 

Washington.  See  contra:  Fairliaven  L.  Co.  v.  Jordan,  .">  Wash.  729, 
32  Pac.  Rep.  729;  Johnston  v.  Harrington,  5  Wash.  73,  81,  31  Pac.  Rep. 
316. 


§  375  mechanics'  liens.  312 

the  Code  of  Civil  Procedure  is  done  in  an  incorporated  city, 
where  it  describes  the  property  as  situated  in  such  city,  as 
the  city  of  San  Diego,  the  court  taking  judicial  notice  that 
it  is  an  incorporated  city.*^ 

Surplusage.  Mere  surplusage,*®  or  misstatement  of  facts 
not  material,*^  does  not  vitiate  the  claim;  although,  as  in  the 
case  of  the  date  of  the  contract,  such  misstatement  may  be  a 
limitation  upon  the  amount  of  the  recovery.*^ 

§  375.  Statement  of  demand,  after  deducting  credits  and 
offsets.*'-'  The  claim  filed  must  contain  a  "  statement  of  his 
demand,  after  deducting  all  just  credits  and  offsets."  ^°  This 
is  thought  to  mean  something  different  from  the  statement 
of  the  "  terms,  time  given,  and  conditions  of  the  contract  " ;  ^^ 

«  Bryan  v.  Abbott,  131  Cal.  222,  225,  63  Pac.  Rep.  363. 

*«  See  Mclntyre  v.  Trautner,   63  Cal.   429,   431. 

Colorado.  Bitter  v.  Mouat  L.  &  I.  Co.,  10  Colo.  App.  307,  51  Pac. 
519   (amount  to  become  due,  statement,  1889). 

"  Harmon  v.  Ashmead,  68  Cal.  321,  323,  91  Pac.  Rep.  183.  See  Nei- 
haus  V.  Morgan,  45  Pac.  Rep.  255. 

See  "  Error  in  Claim,"  §§  412  et  seq.,  post. 

Oregon.      Chamberlain  v.  Hibbard,  26  Oreg-.  4  28. 

«  See   §§  387  et  seq.,  and  §§  411   et  seq.,   post. 

^  As  to  error  or  mistake  in  the  statement  of  the  demand,  or  of  the 
amount  of  credits  and  offsets  allowed,  or  of  the  balance  asserted  to  be 
due  claimant,  see  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1203a  (a  new  section, 
added  by  Stats,  and  Amdts.  1907,  p.  858). 

See  also  "Uncertainty  and  Error,"   §§411  et  seq.,  post. 

Colorado.  Failure  to  specify  the  amount  as  due  and  owing  under  a 
written  contract:  See  Joralmon  v.  McPhee,  31  Colo.  26,  71  Pac.  Rep. 
419,  422. 

^^  Kerr's  Cyc.   Code  Civ.  Proo.,   §  1187. 

IVew  Mexico.  See  Ford  v.  Springer  L.  Assoc,  8  N.  M.  37,  51,  41  Pac. 
Rep.  541. 

Washington.  See  United  States  Sav.  L.  &  Bldg.  Co.  v.  Jones,  9 
Wash.  434,  37  Pac.  Rep.  666;  Merchant  v.  Humeston,  2  Wash.  Ter.  433; 
Wheeler  v.  Port  Blakeley  M.  Co.,  2  W^ash.  Ter.  71,  3  Pac.  Rep.  635. 

"  See  §§  387  et  seq.,  post. 

Cases  do  not  seem  to  be  very  clear  upon  this  point.  But  see  Goss  v. 
Strelitz,  54  Cal.  640,  643;  Wagner  v.  Hansen,  103  Cal.  104,  107,  37  Pac. 
Rep.  195;  Russ  L.  &  M.  Co.  v.  Garrettson,  87  Cal.  589.  591,  25  Pac.  Rep. 
747. 

New  Mexico.  This  expression  means  a  statement  of  "  indebted- 
ness": Minor  v.  Marshall,  6  N.  M.  194,  201,  27  Pac.  Rep.  481;  Hobbs  v. 
Spiegelberg,  3  N.  M.  357,  361,  5  Pac.  Rep.  529  (1880;  claim,  "after  de- 
ducting all  credits";  statute  (§6),  "after  deducting. all  just  credits 
and  offsets";  held,  sufficient). 

Oregon.  "  '  Demand,'  as  used  In  the  act,  evidently  means  the  thing 
claimed  as  due,  which,  in  this  class  of  cases,  is  a  sum  of  money,  and  a 
statement  of  the  demand  would  be  a  recital  of  facts  out  of  wMch  it 
arises  ":    Ainslie  v.  Kohn,  16  Oreg.  363,  19  Pac,  Rep.  97. 


313  CONTENTS   OF    CLAIM    OF    LIEN.  §  375 

and  a  statement  that  the  claimant  was  to  receive  a  certain 
sum  upon  the  completion  of  the  work  is  not  a  sufficient  state- 
ment of  his  demand."'^^ 

"  Demand  "  means  what.  It  is  thus  evident  that  the  "  de- 
mand "  is  not  necessarily  the  contract  price;  ^^  nor  does  the 
expression  mean  an  itemized  account ;  ^*  but  a  statement  of 

"  Wagner  v.  Hansen,  103  Cal.  104,  107,  37  Pac.  Rep.  195.  See  Fer- 
nandez V.  Burleson,  110  Cal.  164,  167,  42  Pac.  Rep.  566,  52  Am.  St.  Rep. 
75;  Santa  Monica  L.  &  M.  Co.  v.  Hege,  119  Cal.  376,  380.  51  Pac.  Rep. 
555. 

"  Santa  Monica  L.  &  M.  Co.  v.  Heg-e,  119  Cal.  376,  381,  51  Pac.  Rep. 
555. 

^  "  Demand."  In  the  case  of  Jewell  v.  McKay,  82  Cal.  144,  150,  23 
Pac.  Rep.  139,  it  was  said:  "The  statute,  as  it  stood  in  1858,  required 
that  the  notice  should  give  'a  just  and  true  account  of  the  demand.'" 

Itemizing  unnecessary.  "  And,  under  this  provision,  it  was  held  in 
Brennan  v.  Swasey,  16  Cal.  141,  76  Am.  Dec.  507,  that  an  itemized 
account  was  not  necessary,  the  court,  per  Cope,  J.,  saying,  '  It  was  un- 
necessary to  set  out  the  items  of  the  account.  Nothing  more  was 
required  than  a  statement  of  the  demand,  showing  its  nature  and 
character  and  the  amount  due  or  owing  thereon':  See  also  Selden  v. 
Meeks,  17  Cal.  129,  131;  Heston  v.  Martin,  11  Cal.  42;  Davis  v.  Living- 
ston, 29  Cal.  283":  Jewell  v.  McKay,  supra. 

"  Tlie  word  'demand'  was  construed  in  Brennan  v.  Swasey,  above 
quoted,  and.  under  tliat  decision,  it  must  be  held  that  the  word  does 
not  mean  an  itemized  account";  Jewell  v.  McKay,  supra.  But  see 
Wagner  v.  Hansen,  103  Cal.  104,  107,  37  Pac.  Rep.  195. 

Under  the  act  of  ISiJli,  §  5  of  which  required  "  a  written  notice  to 
the  employer  of  the  original  contractor,  of  the  nature  and  extent  of 
their  claims  against  the  original  contractor  or  his  assigns,  over  and 
above  all  payments  and  offsets  for  work  and  labor  done  or  agreed  to 
be  done,  or  materials  furnished  or  agreed  to  be  furnislied,  for  such 
construction  or  repair,"  where  the  notice  simply  notified  the  owners 
that  the  claimant  held  them  responsible  for  a  specified  sum  "for  turn- 
ing and  materials  furnished  for  your  houses  on  Powell  Street,  ordered 
by  Gosling  &  Shelden,"  the  contractors,  it  was  held  that  the  "state- 
ment prescribed  is  a  statement  of  claims  as  affected  by  payments  and 
offsets,  and  there  is  nothing  in  the  notice  .  .  .  bearing  either  directly 
or  indirectly  upon  that  point":  Davis  v.  Livingston,  29  Cal.  283,  287; 
but  it  was  h,eld  in  the  same  case  that  it  was  not  necessary  to  state 
the  particular  character  of  the  materials,  as  "the  nature  and  extent" 
of  the  claim  may  be  as  well  understood  without  it. 

Hawaii.  The  notice  of  lien  for  materials  furnished  by  a  subcon- 
tractor should  show  the  nature  and  character  of  the  materials  for 
Which  the  lien  is  claimed:    Allen  v.  Redward,  10  Hawn.  151,  160. 

Montana.  See  Bardwell  v.  Anderson,  13  Mont.  87,  32  Pac.  Rep.  285. 
as  to  particularity  of  account.  "A  just  and  true  account"  does  not 
Imply,  necessarily,  the  exact  amount  a  jury  or  court  might  find  due 
under  the  contract:  Smith  v.  Sherman,  12  Mont.  524,  31  Pac.  Rep.  72; 
Black  v.  Appolonio,  1  Mont.  342,  346;  Nolan  v.  Lovelock,  1  Mont.  224; 
Merrigan  v.  English,  9  Mont.  113,  22  Pac.  Rep.  454,  5  L.  R.  A.  837. 

Nevada.  Items  not  required;  it  is  sufficient  to  set  forth  a  state- 
ment of  the  demand,  sliowing  its  nature  and  character,  and  the 
amount  due  or  owing  thereon:    Lonkey  v.  Wells,  16  Nev.  271. 


§  375  mechanics'  liens.  314 

the  amount  due  as  affected  by  credits  and  offsets.^"  Where, 
however,  the  statutory'  original  contract  is  void  because  not 
filed,  the  claim  may  aver  the  contract  price  for  the  materials, 

New  Mexico.  But  see  Hobbs  v.  Spiegelberg,  3  N.  M.  361,  5  Pac.  Rep. 
529;  and  see  Springer  L.  Assoc,  v.  Ford,  168  U.  S.  513,  bk.  42  L.  ed.  562, 
18   Sup.   Ct.   Rep.    170. 

Oregon.  Curtis  v.  Sestanovicli,  26  Oreg.  107,  37  Pac.  Rep.  67;  Ainslie 
V.  Kohn,  16  Oreg.  363,  19  Pac.  Rep.  97,  dLstinKuished  in  Gates  v.  Brown, 
1  Wash.  470,  473,  25  Pac.  Rep.  914;  Chamberlain  v.  Hibbard,  26  Oreg. 
428.  38  Pac.  Rep.  437. 

See  §§  387  at  seq.,  post. 

Utah.  Statement  of  demand,  where  an  action  to  reform  certain 
alleged  fraudulent  estimates  of  the  engineer  was  pending:  Garland  v. 
Bear  Lake  &  R.  T^'.  &  Irr.  Co..   9  Utah   350,  34  Pac.  Rep.   368. 

Washington.  Where  there  is  no  separate  contract  for  the  labor  and 
for  the  materials,  but  one  contract  for  everything  required  in  the 
prosecution  of  any  particular  work,  the  claim  cannot  and  should  not 
set  out  separate  amounts  for  the  material  and  for  the  labor:  Spears 
V.  Lawrence,  10  Wash.  368,  38  Pac.  Rep.  1049,  45  Am.  St.  Rep.  789.  But 
contra  where  the  claim  stated  that,  "pursuant  to  the  contract,  the 
lienors  did  furnish  to  J.  .  .  .  certain  materials  and  labor,  as  one  con- 
tinuous running  account,  and  as  ordered  by  him,  which  was  reason- 
ably w^orth  $1,789.27":  Lnited  States  Sav.  L.  &  Bldg.  Co.  v.  Jones,  9 
Wash.  434,  439,  37  Pac.  Rep.  666.  And  it  seems  to  be  held  in  the  last- 
mentioned  case  that  it  ip  necessary  to  describe  the  kind  of  material 
furnished:  "We  have  held  that  a  statement  of  the  demand  requires 
something  more  than  a  statement  of  the  amount  claimed":  Id. 

It  was  formerly  held,  in  tlie  case  of  material-iuen,  that  "a,  reason- 
able bill  of  items"  was  required:  Fairhaven  L.  Co.  v.  Jordan,  5  Wash. 
729,  32  Pac.  Rep.  729;  Gates  v.  Brown,  1  Wash.  470,  25  Pac.  Rep.  914; 
Warren  v.  Quade.  3  Wash.  750.  29  Pac.  Rep.  827:  but  see  Tacoma  L,  & 
Mfg.  Co.  V.  Kennedy,  4  Wash.  305,  30  Pac.  Rep.  79. 

An  exhibit  or  itemized  statement,  made  a  part  of  the  claim,  may 
be  sufficient  as  a  statement  of  the  amount  due  after  deducting  all  just 
credits  and  offsets,  without  stating  that  the  cash  credits  were  all  the 
payments  made  on  account  of  the  material  furnished:  Johnston  v. 
Harrington,  5  Wash.  73,  80,  31  Pac.  Rep.  316.  The  fact  that  there  was 
no  other  indication  of  the  character  of  the  materials,  than  that  it  was 
"  mdse.,"  rendered  the  claim  insufficient,  notwithstanding  the  fact  that 
the  billhead  showed  the  nature  of  the  material  in  which  the  claimant 
dealt:  Fairhaven  L.  Co.  v.  Jordan,  supra.  In  this  case  it  was  also  held 
that  a  claim  for  a  balance  i.«  insufficient,  citing  Gates  v.  Brown,  supra. 

^  See   authorities   in   preceding  foot-note. 

Oregon.  Failure  to  allow  as  a  credit  the  amount  received  by  claim- 
ant on  the  sale  of  certain  groceries  alleged  to  have  been  improperly 
sold,  held  to  vitiate  the  lien:  Lewis  v.  Beeman,  46  Oreg.  311,  80  Pac. 
Rep.  417. 

Effect  of  false  statement.  "  Where  the  claimant  seeks  to  enforce 
his  lien  against  the  property  of  one  with  whom  he  did  not  contract, 
and  to  whom  he  did  not  furnish  labor  or  material,  and  in  his  state- 
ment, as  filed,  neglects  to  deduct  from  the  amount  of  his  claim  pay- 
ments which  have  been  made  thereon,  and  thereby  puts  on  record  a 
statement  which  he  knows,  or  could  have  known  by  the  exercise  of 
reasonable  diligence,  was  not  'a  true  statement  of  his  claim,  after 
deducting  all  just  credits  and  offsets.'  "  he  loses  his  lien,  in  the  absence 
of  a  savin,g  statute:  Nicolai  Bros.  Co.  v.  Van  Fridagh,  23  Oreg.  149,  31 
Pac.   Rep.   288. 


315  CONTENTS   OP    CLAIM    OF    LIEN.  §  376 

and  this  statement  is  a  sufficient  showing,  prima  facie,  of 
their  value.^® 

What  sufficient  compliance  with  statute.  There  is  a  suffi- 
cient compliance  with  the  statute  when  the  claim  states  that 
the  reasonable  value  of  materials  furnished  by  plaintiffs  for 
each  of  the  two  houses  was  a  specified  sum,  no  part  of  which 
has  been  paid,  and  that  the  total  sum  for  the  two  houses  (des- 
ignating it),  "  in  gold  coin  of  the  United  States,"  is  still  due 
on  such  buildings,  after  deducting  all  just  credits  and  off- 
sets.°^ 

The  clause  under  discussion  does  not  require,  in  the  case  of 
materials,  a  statement  that  they  were  furnished  to  be  used  in 
the  building."* 

§  376.     Same.     Object  of  provision  as  to  demand.     The 

object  of  the  provision  requiring  the  claim  of  lien  to  contain 

"After  deducting  all  credits,"  etc.  It  is  not  necessary  to  use  the 
expression,  "after  deducting  aU  just  credits  and  offsets";  and  it  is 
sufficient  if  notice  be  given  of  the  amount  of  the  claim:  Ainslie  v. 
Kohn  16  Greg.  363.  19  Pac.  Rep.  97;  Kezartee  v.  Marks.  15  Greg.  o29, 
535,  16  Pac.  Rep.  407;  Whittier  v.  Blakesley,  13  Greg.  546,  11  Pac.  Rep. 
305' (1874).  ^^       ,. 

=«  Bringham  v.  Knox,  127  Cal.  40,  44,  59  Pac.  Rep.  198.  No  direct 
reference,  however,  was  made  in  this  case  to  the  requirement  of  the 
statute  regarding  the  "  demand,"  or,  in  fact,  to  any  requirement  rela- 
tive to  the  claim  of  lien. 

"  Neihaus  v.  Morgan    (Cal.,  June  2,  1896),  45  Pac.  Rep.  255. 

Colorado.  Where  tlie  notice  simply  gave  the  balance  due,  the  stat- 
ute requiring  "an  abstract  of  indebtedness,  showing  the  whole  amount 
of  debt,  the  whole  amount  of  credit,  and  the  balance  due,  or  to  become 
due,  to  the  claimant":  held,  insufficient:  Cannon  v.  Williams,  14  Colo. 
21,  23  Pac.  Rep.  456  (1883).  See  Rico  R.  &  M.  Co.  v.  Musgrave,  14 
Colo.  79,  23  Pac.  Rep.  458. 

Where  the  statement  set  out  that  the  contract  price  was  two  hun- 
dred   and    fifty    dollars,    that    the    owner    had    paid    one    hundred    and 

twenty-five    dollars,    "and    that    the    sum    of    $ is    still    due    and 

owing";   held,  sufficient,  as  no  one  could  be  misled:  Harris  v.  Harris. 
9  Colo.  App.   211,  47   Pac.   Rep.   841. 

•  Where  the  statement  embraced  several  assi|?ned  liens,  and  the  total 
amount  due  on  each  claim  separately  was  given,  but  only  the  aggre- 
gate credit  was  given,  it  was  held  sufficient:  Small  v.  Foley,  8  Colo. 
App.  435,  443,  47  Pac.  Rep.  64.  But  otherwise  if  the  sums  due  are  not 
given:  Small  v.  Foley,  supra;  Hanna  v.  Savings  Bank,  3  Colo.  App.  28, 
31   Pac.  Rep.  1020. 

•■»  Neihaus  v.  Morgan  (Cal.,  June  2,  1896),  45  Pac.  Rep.  255.  See 
Tibbetts  v.  Moore,  23  Cal.  208,  215   (1856). 

See  also  "Unnecessary  Statements,"  §§374  et  seq.,  ante,  and  §413, 
post. 

As  to  Utah  and  ^^'asilington,  see  notes  to  §  374.  ant<» 


§  377  mechanics'  liens.  316 

a  statement  of  the  claimant's  demand,  after  deducting  all 
just  credits  and  offsets,  is  to  inform  the  owner  as  to  the 
extent  and  nature  of  the  lienor's  claim,  so  that  he  may  act 
thereon  in  his  settlement  with  the  contractor.^^ 

§  377.  Same.  Commingling  lienable  and  non-lienable 
items.  When  an  unspecified  and  undeterminable  portion  of 
the  materials  mentioned  in  the  claim  consists  of  non-lienable 
items  which  cannot  be  segregated  from  the  general  aggre- 
gate, the  claim  is  of  no  effect ;  ^°  but  if  the  items  can  be 
separated,  the  rule  is  otherwise.®^ 

■■'•  Santa  Monica  L.  &  M.  Co.  v.  Hege,  119  Cal.  376,  381,  51  Pac.  Rep. 
555. 

Colorado.  Its  object  is  to  infoi-m  any  interested  party  of  the  actual 
condition  of  the  account  and  the  amount  for  which  a  lien  is  claimed: 
Harris  v.  Harris,  9  Colo.  App.  211,  219,  47  Pac.  Rep.  841. 

«»  McClain  v.  Hutton,  131  Cal.  132,  141,  61  Pac.  Rep.  273,  63  Id.  182, 
622. 

Arizona.  Where  lienable  and  non-lienable  items  are  commingled  in 
the  same  claim,  it  is  proper  to  receive  evidence  in  order  to  segregate 
the  lienable  items,  in  the  absence  of  fraud  or  bad  faith.  Thus  such 
evidence  was  allowed  where  the  non-lienable  items  were  otherwise 
lienable,  but  a  claim  therefor  had  not  been  filed  within  the  proper 
time:    Wolfley  v.  Hughes,  71  Pac.  Rep.  951. 

Havraii.     Bierce  v.  Hutchins,  16  Hawn.  418,  425,  717. 

New  Mexico.  A  claim  for  a  fixed  sum  for  all  services  under  an 
entire  contract,  part  of  the  services  being  non-lienable,  is  void,  under 
Comp.  Laws,  §  1520:  Boyle  v.  Mountain  K.  M.  Co.,  9  N.  M.  237,  50  Pac. 
Rep.  347. 

Oregon.  "Where  lienable  and  non-lienable  items  are  included  in 
one  contract  for  a  specific  sum,  or  are  made  the  basis  of  a  lumping 
charge,  so  that  it  cannot  be  perceived  from  the  contract  or  account 
what  proportion  is  chargeable  to  each,  the  benefit  of  the  mechanic's- 
lien  law  is  lost.  In  such  cases  the  court  cannot,  by  extrinsic  evi- 
dence, apportion  the  amount  of  the  entire  charge  or  contract  price  be- 
tween the  lienable  and  non-lienable  items.  But  where  the  claimant's 
demand,  made  in  good  faith,  consists  of  several  different  items,  sepa- 
rately charged,  some  of  which  are,  by  law,  a  lien  upon  the  property, 
and  others  do  not  come  within  the  scope  of  the  statute,  he  may  enforce 
his  lien  so  far  as  given  by  law,  and  it  is  not  vitiated  because  he  has 
included  therein  non-lienable  items":  Getty  v.  Ames,  30  Oreg.  573,  48 
Pac.  Rep.  355,  60  Am.  St.  Rep.  835;  Allen  v.  Elwert,  29  Oreg.  428,  4  44, 
44  Pac.  Rep.  823,  48  Pac.  Rep.  54;  Title  G.  &  T.  Co.  v.  Wrenn,  35  Oreg. 
62,  56  Pac.  Rep.  271,  274,  76  Am.  St.  Rep.  454. 

\Va.sliinKton.  Where  non-lienable  items  are  included  in  the  claim  of 
lien,  under  the  honest  belief  that  they  are  lienable,  a  personal  judg- 
ment could  only  be  entered  against  the  owner  on  the  non-lienable 
items:  Powell  v.  Nolan,  27  Wash.  318.  67  Pac.  Rep!  712,  720  (under 
Ballinger's  Ann.  Codes  and  Stats.,  §  5907). 

""  See  §  414,  post. 

As  to  effect  of  non-lieuuble  items  on  lien,  see  note  4  Am.  &  Eng. 
Ann.  Cas.   836. 


317  CONTEXTS    OF    CLAIM    OF    LIEN.  §§  378,  379 

§  378.     Same.     Demands  against  two  or  more  buildings. 

With  reference  to  specifying  the  several  amounts  due  on 
each  of  two  or  more  buildings,  etc.,  under  the  California 
statute,®^  and  under  similar  provisions,  it  has  generally  been 
held  that  the  failure  to  designate  such  amounts  does  not 
invalidate  the  lien,  but  affects  only  its  priority.®^  The  latter 
subject  will  be  considered  in  detail  hereafter."* 

§  379.     Names  required  to  be  stated  in  claim.    In  general. 

The  statute"^  provides:  "Every  original  contractor,  .  .  . 
and  every  person,  .  .  .  must  file  ...  a  claim  containing  a 
statement  of  his  demand,  .  .  .  with  the  name  of  the  owner 

Mechanic's  lien  not  vitiated  1)ecause  the  claim  covered,  in  part, 
articles  not  sul).iect  to  lien,  it  not  appearing-  tliat  the  claim  was  wil- 
fully so  made:  Barnes  v.  Colorado  Springs  &  C.  C.  D.  R.  Co.  (Colo., 
March    2,    1908),   94   Pac.   Rep.    570. 

«2  Kerr's  Cye.  Code  Civ.  Proc,   §  1188. 

«3  See  Snell  v.  Payne,  115  Cal.  218,  46  Pac.  Rep.  1069;  Booth  v.  Pen- 
dola,  88  Cal.  36,  43,  23  Pac.  Rep.  200,  25  Pac.  Rep.  1101.  See  "Descrip- 
tion," §  406,  post. 

As  to  mechanic's  lien  on  separate  buildings  locatetl  on  nou-contigu- 
ous  lots,  see  note   2  Am.   &  Eng-.  Ann.   Cas.   685. 

Colorado.     See  Small  v.  Foley,  8  Colo.  App.  435,  47  Pac.  Rep.  64. 

Idaho.  Effect  of  failure  to  specify  amount  due  on  each  property  is 
to  postpone  lien:  Phillips  v.  Salmon  River  M.  &  D.  Co.,  9  Idaho  149,  72 
Pac.  Rep.  886   (under  Sess.  Laws  1899,  p.  148,  §  7). 

New  Mexico.  Lien  filed  ag-ainst  several  mining  claims  is  not  void 
because  the  amounts  against  each  claim  are  not  separated  in  the 
claim:  Post  v.  Fleming,  10  N.  M.  476,  62  Pac.  Rep.  1087  (under  Comp. 
Laws  1897,   §  2222). 

Utah.  Under  Rev.  Stats.  1898,  §  1387,  the  court  is  at  liberty  to  hold 
the  claim  insufficient  or  not,  as  equity  demands  in  the  particular  case, 
where  the  claim  fails  to  state  the  amount  due  on  each  building;  but 
otherwise  under  preceding-  statutes,  which  rendered  the  claim  invalid: 
Eccles  L.  Co.  v.  Martin,  87  Pac.  Rep.  713. 

The  statement  required  by  Rev.  Stats.  189S,  §  1386.  is  for  the 
purpose  of  acquiring  a  lien,  but  that  required  by  §  1387  relates  to 
priorities:  Id. 

It  is  not  necessary  for  the  claim  to  recite  the  «-ork  done  or  ma- 
terials furnished  under  each  of  two  or  more  separate  contracts;  but 
it  is  sufficient  to  state  the  total  amount  of  debt  and  credit,  and 
balance  due:  Culmer  v.  Caine,  22  Utah  216,  61  Pac.  Rep.  1008  (under 
Laws  1890,  ch.  XXX,  §  17). 

Washington.  The  effect  of  failing  to  designate  in  tlie  claim  of  lien 
the  amount  due  on  each  of  two  buildings  is  merely  to  postpone  it  to 
other  liens,  and  not  to  invalidate  it:  Seattle  L.  Co.  v.  Sweeney,  33 
Wash.  691,  74  Pac.  Rep.  1001  (under  2  Ballinger's  Ann.  Codes  and  Stats., 
§  5907).  But  see  Heald  v.  Hodder,  5  Wash.  677,  32  Pac.  Rep.  728;  Mer- 
chant V.   Humeston.  2  Wash.  Ter.  433,   7  Pac.  Rep.  903. 

•*  See  "  Priorities,"  §§  486  et  seq..  post. 

•  Kerr's  Cyc.  Code  Civ.  Proc,  §  1187. 


§  380  mechanics'  liens.  318 

or  reputed  owner,  if  known,  and  also  the  name  of  the  person 
by  whom  he  was  employed,  or  to  whom  he  furnished  the 
materials."  ^^ 

The  object  of  this  statement  in  his  claim  is  to  designate  the 
person  against  whom  he  seeks  to  establish  the  lien,  as  well  as 
to  protect  others  in  their  dealings  with  the  property.''^ 
The  purpose  of  this  designation  is  to  point  out  the  individual 
who  is  to  be  affected  thereby,  rather  than  the  attribute  of 
ownership ;  and  if  the  individual  against  whose  property  the 
lien  is  claimed  is  specified,  he  receives  all  the  notice  which 
is  intended  by  the  statute,  irrespective  of  whether  he  is 
designated  as  owner  or  reputed  owner.®^ 

Substantial  compliance  with  the  statute,  in  regard  to 
names,  is  sufficient,  if  the  owner  is  not  misled  or  prejudiced 
by  reason  of  any  misstatement  in  the  claim.'''' 

§  380.     Same.     Name  of  owner  or  reputed  owner.     The 

statute  '^°  requires  the  claim  to  state  "  the  name  of  the  owner 

««  stating  quantity  of  materials.  As  to  circumstances  under  which 
it  is  not  necessary  for  the  claimant  to  state  the  quantities  of  material 
furnished  to  different  persons  named,  under  this  clause,  see  Harmon 
V.  San  Francisco  &  S.  R.  R.  Co.,  86  Cal.  617,  619,  25  Pac.  Rep.  124; 
Gordon  H.  Co.  v.  San  Francisco  &  S.  R.  R.  Co.,  86  Cal.  620,  623,  25  Pac. 
Rep.  125. 

Substantial  compliance  with  the  statutory  requirements  as  to 
making  out  in  writing  and  verifying  claim  of  lien  is  necessary,  in 
order  to  charge,  under  the  provisions  of  the  mechanic's-lien  law,  the 
land  or  building  of  a  third  party  with  a  debt  incurred  by  another  and 
not  by  the  owner:  Hogan  v.  Bigler   (Cal.  App.,  April  9,   1908),   96   Pac. 

Rep.   97. 

For  unnecessary  statements,  see  §  374,  ante. 

"  Corbett  v.  Chambers,  109  Cal.  178,  185,  41  Pac.  Rep.  873;  Ah  Louis 
V    Harwood,  140  Cal.  500,  504,  74  Pac.  Rep.  41. 

»  Corbett  v.  Chambers,  109  Cal.  178,  185,  41  Pac.  Rep.  873.  See  Reed 
V.  Norton,  90  Cal.  590,  596,  26  Pac.  Rep.  767,  27  Pac.  Rep.  426;  Ah  Louis 
v.  Harwood,  140  Cal.  500,  504,  74  Pac.  Rep.  41. 

See  §  365,  ante. 

««  West  Coast  L.  Co.  v.  Apfield,  86  Cal.  335,  341,  24  Pac.  Rep.  993; 
Reed  v.  Norton,  90  Cal.  590,  596,  26  Pac.  Rep.  767,  27  Pac.  Rep.  426.  See 
Harmon  v.  San  Francisco  &  S.  R.  R.  Co.,  86  Cal.  617,  619,  25  Pac.  Rep. 
124. 

Montana.     Richards  v.  Lewisohn,  19  Mont.  128,  133,  47  Pac.  Rep.  645, 

647. 

Oregon.  See  Osborn  v.  Logus,  28  Oreg.  302,  37  Pac.  Rep.  456.  38  Pac. 
Rep.  190,  42  Pac.  Rep.  997;  but  see  Gordon  v.  Deal,  23  Oreg.  153,  £1 
Pac.  Rep.  287. 

'»  Kerr's  Cyc.  Code  Ciy.  Proe.,  §  1187. 


319  CONTENTS   OF    CLAIM    OF    LIEN.  §  380 

or  reputed  owner,  if  known."  "     A  substantial  compliance 
with  section  eleven  hundred  and  eighty-seven,  as  to  the  claim 

"  Montana.  WHienever  a  particular  statute  requires  the  claim  to 
contain  the  name  of  the  owner  or  reputed  owner,  the  general  rule  is, 
that  the  omission  of  this  detail  is  fatal  to  the  lien.  In  Montana  L.  & 
M.  Co.  V.  Obelisk  M.  &  C.  Co.,  15  Mont.  20,  37  Pac.  Rep.  897,  the  court 
assumed  that  the  provisions  of  the  Compiled  Statutes  of  1887  (Comp. 
Stats.  1887,  div.  v,  §§  1371-1373,  and  amendments,  Laws  1887,  p.  71), 
which  are  substantially  the  same  as  §§  2131  and  2132  oi  the  Code  of 
Civil  Procedure,  requiring  the  claim  of  lien  to  state  the  name  of  the 
owner.  Again,  in  Richards  v.  Lewisohn,  19  Mont.  128,  47  Pac.  Rep.  645, 
it  was  said  that  this  construction  of  the  provisions  of  the  Compiled 
Statutes  was  necessary,  in  order  that  they  might  be  made  harmonioiis' 
and  rendered  effective.  A  compliance  on  the  lienor's  part  enables  the 
clerk  to  perform  his  duty,  which,  otherwise,  he  could  not  do:  Missoula 
M.  Co.  v.  O'Donnell,  24  Mont.  65,  60  Pac.  Rep.  594,  991. 

If  sought  to  aiteot  the  building  only,  the  same  requirement  should 
have  been  observed.  In  Montana  L.  &  M.  Co.  v.  Obelisk  M.  &  C.  Co., 
15  Mont.  20,  37  Pac.  Rep.  897,  the  court  approved  this  construction  of 
the  statute,  for  it  was  there  held  that  it  was  not  necessary  to  state 
the  name  of  the  owner  of  the  fee,  but  that  the  name  of  the  lessee  was 
sufficient,  where  it  was  sought  to  charge  its  interest  only.  So  long  as 
the  record  owner  of  the  fee  or  other  interest  to  be  charged  is  the 
person  who  is  to  be  affected  by  the  claim,  he  is  the  owner,  within  the 
meaning  of  the  statute,  and  It  is  necessary  to  name  him  as  the  owner; 
but  if  the  person  for  whose  benefit  the  improvement  is  erected  does 
not  appear  of  record  as  the  owner,  it  is  nevertheless  incumbent  on  the 
claimant  to  insert  such  owner's  name  in  the  claim:  Missoula  M.  Co.  v. 
O'Donnell,  24  Mont.  65,  60  Pac.  Rep.  991,  994.  And  see  Cook  v.  Gallatin 
R.  Co.,   28  Mont.  340.   72  Pac.  Rep.  678. 

As  to  building  or  improvement  distinct  from  the  land,  see  note  2 
Am.  &  Eng.  Ann.  Cas.   689-691. 

Omission  of  the  name  of  tlie  owner  \vho.se  interest  is  to  be  charged 
cannot  be  supplied  by  the  complaint:  Cook  v.  Gallatin  R.  Co.,  28  Mont. 
340,  72  Pac.  Rep.  678  (variance  between  names). 

Oregon.  It  is  essential  that  the  name  of  the  owner  or  reputed 
owner  shall  be  stated:  Gordon  v.  Deal,  23  Oreg.  153,  27  Pac.  Rep.  287; 
that  is,  the  name  of  the  "owner  of  the  building  or  other  improve- 
ments": Kezartee  v.  Marks,  15  Oreg.  529,  16  Pac.  Rep.  407  (under  §  3673. 
Hill's  Code).  It  should  not  appear  incidentally,  or  as  part  of  the 
description  of  the  property,  but  it  must  appear  on  the  face  of  the 
claim  as  an  independent  matter,  either  directly  or  by  necessary  infer- 
ence:   Gordon  v.  Deal,  siipra. 

Washington.  In  Wright  v.  Cowie,  5  Wash.  341,  a  claim  was  lield 
insufficient  because  the  owner  of  a  leasehold  interest  in  a  portion  of 
the  land  covered  by  the  building,  and  of  a  part  of  the  building  erected 
thereon,  was  not  made  a  party  to  the  claim.  Where  the  claim  stated 
that  a  certain  company  was  the  owner  and  reputed  owner  "of  said 
railroad,"  but  there  was  no  reference  to  the  ownership  of  the  land 
over  and  through  which  said  railway  was  constructed,  or  of  the  own- 
ership of  the  right  of  way  thereof,  it  was  held  insufficient:  Vincent  v. 
Snotiualmle  Mill  Co.,  7  Wash.  566,  35  Pac.  Rep.  396;  Front  Street  Cable 
E.  Co.  V.  Johnson.  2  Wash.  112,  25  Pac.  Rep.  1084,  11  L.  R.  A.  693. 

As  to  mechanic's  lien  on  leasehold  estate,  see  note  3  Am.  &  Eng. 
Ann.  Cas.  1096. 

With  reference  to  the  name  of  the  owner  or  reputed  owner,  under 
§  5904,  Ballinger's  Ann.  Codes  and  Stats.,  which  was  similar  to  the 
California   provision,   it   was   also   provided,    "  if   not  known,  that   fact 


§  380  mechanics'  liens.  320 

of  lien,  relative  to  the  ownership  of  the  property,  is  all  that 
is  required.^- 

shall  be  mentioned."  Under  this  section  it  was  held  that  the  claim 
was  not  invalidated  because  the  claimant  was  mistaken  as  to  who  was 
the  owner  of  the  realty,  no  one  being  misled  to  his  damage:  and  where 
the  claim  stated  that  the  "  name  of  the  owner  and  reputed  owner  of 
such  premises  is,  and  at  all  times  mentioned  herein  was,  J.  Co.,  and 
that  one  S.  is  the  owner  of  the  ground  on  which  said  plant  is  located." 
and  set  forth  a  leasehold  interest  in  said  company,  it  was  held  suffi- 
cient, although  the  real  owner  of  the  land  was  another  than  the  one 
stated:  Hopkins  v.  Jamieson-Dixon  Mill  Co.,  11  Wash.  308,  39  Pac.  Rep. 
815. 

Mi»)take  as  to  leg^al  ami  equitable  ownership.  A  claim  of  lien  is 
sufficient  which  states  that  tlie  real  owner  has  but  an  equitable  inter- 
est in  the  premises,  and  mistakingly  attributes  the  legal  ownership  to 
another,  who  has  no  interest  in  the  premises,  there  being  no  interested 
subsequent  purchasers  or  encumbrancers,  and  the  real  owner  not 
being  injured  or  misled  by  the  statement  that  he  was  the  equitable 
owrer  only,  as  all  persons  by  proper  inquiry  could  ascertain  the  real 
facts  of  the  case;  and  if  the  claim  had  stated  that  S.  was  the  owner 
and  reputed  owner  of  the  premises,  the  fact  that  he  owned  a  greater 
interest  in  the  land  than  that  set  out  in  the  claim  would  not  invali- 
date the  lien:  Bolster  v.  Stocks,  13  Wash.  460,  43  Pac.  Rep.  532,  534,  1099. 

Husband  and  wife.  Where  it  did  not  appear  on  the  face  of  tlie 
claim  that  the  claimant  had  knowledge  of  the  fact  that  the  wife  of 
the  owner  had  an  interest  therein,  the  omission  of  her  name  did  not 
vitiate  it:  Bolster  v.  Stocks,  13  "Wash.  460,  43  Pac.  Rep.  532,  534,  1099; 
Powell  V.  Nolan,  27  Wash.  318,  67  Pac.  Rep.  712;  Douthitt  v.  MacCulsky, 
11  Wash.  601,  606.  40  Pac.  Rep.  186. 

Cases  distinguislied.  These  cases  do  not  fall  within  the  principles 
announced  in  Littell-Smythe  Mfg.  Co.  v.  Miller,  3  Wash.  480,  28  Pac. 
Rep.  1035,  and  Sagmeister  v.  Foss,  4  Wash.  320,  30  Pac.  Rep.  80,  744. 
See  Chehalis  County  v.  Elllinger,  21  Wash.  638,  644,  59  Pac.  Rep.  485, 
as  to  the  last-mentioned  case. 

In  LitteU-Smythe  Mfg.  Co.  v.  Miller,  3  Wash.  480,  28  Pac.  Rep.  1035, 
it  was  held  that  in  all  suits  to  foreclose  liens  upon  community  real 
estate  the  wife  was  a  necessary  party  defendant;  and  in  Sagmeister 
V.  Foss,  4  Wash.  320,  30  Pac.  Rep.  80,  744,  that  the  claim  of  lien  against 
the  husband  and  his  interest  in  certain  realty,  which  shows  upon  its 
face  that  the  claimant  had  knowledge  that  the  wife  had  a  community 
interest  in  the  real  estate,  is  defective,  the  claim  stating  a  certain 
person  to  be  the  owner,  and  alluding  to  the  "community  interest  of 
the  wife  of  said"  person.  See  also  Collins  v.  Snoke,  9  Wash.  566,  571, 
38  Pac.  Rep.  161,  and  Turner  v.  Bellingham  Bay  L.  &  Mfg.  Co.,  9  Wash. 
484,  37  Pac.  Rep.  674,  explaining  these  cases  to  substantially  the  same 
effect. 

In  AVashinKton  Rock  Plaster  Co.  v.  Jolinson,  10  Wash.  445,  39  Pac. 
Rep.  115,  it  was  said:  "The  paper  title  was  in  the  name  of  the  hus- 
band, and  knowledge  of  the  fact  that  he  had  a  wife  was  not  so 
brought  home  to  the  plaintiff  as  to  make  it  necessary  that  it  should 
name  her  as  one  of  the  owners  of  the  property.  Besides,  the  necessity 
of  making  her  a  party  to  the  lien  notice,  in  any  case  where  the  record 
title  is  in  the  husband  alone,  may  well  be  doubted.''  And  so  in  claim- 
ing a  lien  upon  the  separate  property  of  one  spouse,  it  is  not  necessary 
to  name  the  other  spouse,  even  though  at  the  time  it  is  intended  to  be 
claimed  as  a  homestead:  See  Parsons  v.  Pearson,  9  Wash.  48,  36  Pac. 
Rep.   974. 

«  Santa  Cruz  R.  P.  Co.  v.  Lyons,  133  Cal.  114,  119,  65  Pac.  Rep.  329. 


32]  CONTENTS   OF    CLAIM    OF    LIEN.  §  380 

Owner  at  the  time  of  filing  claim.  There  is  no  limitation 
upon  the  term  "  owner,"  as  used  in  the  provision  above 
quoted.  It  does  not  refer  to  the  owner  with  whom  the  con- 
tract for  the  improvement  was  made,  nor  to  any  one  but  the 
owner  at  the  date  of  the  tiling  of  the  claim,  as  the  latter  is 
the  party  to  be  affected  thereby,  rather  than  the  one  who  has 
parted  with  his  property  subsequent  to  the  time  of  the 
original  contract.'^^ 

Change  of  ownership.  Where  there  is  a  change  of  owner- 
ship during  the  work,  the  claim  is  not  insufficient  because  it 
states  the  names  of  all  who  were  owners  and  reputed  owners 
during  all  the  times  stated  in  the  claim,  and  because  it  did 

73  See  elaborate  historical  argument  to  estabUsh  this  proposition,  in 
Corbett  v.  Chambers,  109  Cal.  178,  181,  41  Pac.  Rep.  873;  Ah  Louis  v. 
Harwood,  140  Cal.  500,  504,  74  Pac.  Rep.  41.  See  Pacific  M.  L.  Ins.  Co.  v. 
Fisher,  109  Cal.  566,  569,  39  Pac.  Rep.  758. 

See  "  Object,"  §  365,  ante. 

Colorado.  Chicago  L.  Co.  v.  Dillon,  13  Colo.  App.  196,  56  Pac.  Rep. 
989. 

Under  the  act  of  1893,  the  owner  to  be  named  was  the  owner  and 
holder  of  the  legal  title  at  the  time  the  claim  of  lien  was  filed: 
Sprague  I.  Co.  v.  Mouat  L.  &  I.  Co.,  14  Colo.  App.  107,  121,  60  Pac.  Rep. 
179,  183;  and  this  must  appear  on  the  face  of  the  claim,  or  in  the  body 
of  the  statement,  as  an  integral  part  or  portion  of  the  "  declaration  of 
right":  Id.  The  court,  alluding  to  Bitter  v.  Mouat  L.  &  I.  Co.,  10  Colo. 
App.  307,  51  Pac.  Rep.  519,  and  Maher  v.  Shull,  11  Colo.  App.  322,  52 
Pac.  Rep.  1115,  said:  "What  those  cases  hold,  and  what  they  intend 
to  decide,  undoubtedly  is,  that  this  equitable  title  and  equitable  owner- 
ship is  enough,  as  between  the  lien  claimant  and  the  holder  of  the 
equitable  title.  It  will  prevent  the  equitable  owner  from  objecting  to 
the  statement  on  the  ground  of  its  insufficiency  in  stating  the  title  or 
the  name  of  the  person  who  owned  the  property."  In  a  court  of  equity, 
the  equitable  owner,  whose  name  appeared  in  the  claim  of  lien  would 
not  be  permitted  to  contend  that  the  lien  statement  was  insufficient:  Id. 

Oregon.  Willamette  S.  M.  L.  &  M.  Co.  v.  McLeod,  27  Oreg.  272,  40 
Pac.  Rep.  93;  although  at  the  time  of  making  the  contract  he  had  only 
an  equitable  interest. 

Washington.  The  name  of  the  owner  or  reputed  owner  at  the  time 
of  filing  the  claim  should  be  given:  Collins  v.  Snoke,  9  Wash.  566,  570. 
38  Pac.  Rep.  161.  So  the  name  of  the  legal  owner  of  a  leasehold  inter- 
est, on  which  the  lien  is  claimed,  although  it  may  be  held  merely  as 
security,  was  held  sufficient:  Harrington  v.  Miller,  4  Wash.  808,  812, 
31  Pac.  Rep.  325. 

VVIiere  notice  stated  tliat  defendants  were  the  owners,  §  5917,  2 
Ballinger's  Ann.  Codes  and  Stats.,  authorized  the  construction  that  the 
defendants  were  the  owners  at  the  time  the  materials  were  furnished. 
and  where  the  notice  states  that  the  defendants  were  the  owners,  the 
section  authorized  the  construction  that  the  defendants  were  still  tlie 
owners:    Seattle  L.  Co.  v.  Sweeney.  33  Wash.  691,  74  Pac.  Rep.  1001. 

Wyoniiug.     Davis  v.  Big  Horn  L.  Co..  14  Wyo.  517,  85  Pac.  Rep.  980. 

As  to  iiiechanio's  lien  on  leasehold  estate,  see  note  3  Am.  &  Eng. 
Ann.  Cas.  1006. 

Mech.  Liens  —  21 


§  380  MECHAXICS'    LIEXS.  322 

not  state  at  what  time  the  title  passed  from  one  owner  to 
an<^thpr.'^ 

Knowledge  of  name.  The  claimant  may  not  know  the 
name  of  the  owner,  and  if  he  is  ignorant  of  his  name,  the 
claim  is  sufficient  if  silent  on  the  subject."'  It  is  sufficient  if 
the  name  of  the  reputed  owner  is  given. ■^''  Of  course,  if  the 
claim  states  that  a  certain  person  is  the  reputed  owner,  and 
such  person  is  found  to  be  the  owner,  the  claim  is  sufficient 
in  this  respect.'''^  But  if  the  claimant,  as  a  matter  of  fact, 
knows  the  name  of  the  owner  or  reputed  owner,  such  state- 
ment is  as  material  as  anj-  other  statement  required  by  the 
statute,  and  it  must  be  given.^^ 

"  Ah  Louis  V.  Harwood,  140  Cal.  500,  504,  74  Pac.  Rep.  41. 

'5  West  Coast  L.  Co.  v.  Newkirk,  80  Cal.  275,  277,  22  Pac.  Rep.  231; 
Corbett  v.  Chambers,  109  Cal.  178,  183,  184,  41  Pac.  Rep.  873.  A  state- 
ment in  the  last-mentioned  case  that  the  claimant  may  state  the  fact 
of  such  ignorance  is  dictum;  and  the  decision  in  Hooper  v.  Flood,  54 
Cal.  218,  222,  requiring  a  statement  of  the  name  of  the  owner  or 
reputed  owner,  or  that  such  names  are  unknown,  mu.st  be  considered 
as  impliedly  overruled  but  not  noticed  by  later  decisions. 

See  "Contents  of  Claim  in  General,"  §370,  ante,  and  "Unnecessary 
Statements,"  §  374,  ante,  and  authorities,  post,  this  section,  in  this  con- 
nection.    See  Bryan  v.  Abbott,  131  Cal.  222,  224,  63  Pac.  Rep.  363. 

Colorado.  A  lien  claimant  can  only  be  charged  with  knowledge  of 
the  ownership  of  property  as  apparent  upon  the  public  records:  Bitter 
V.  Mouat  L.  &  I.  Co.,  10  Colo.  App.  307,  51  Pac.  Rep.  519. 

Montana.     Richards  v.  Lewisohn,  19  Mont.  128,  132,  47  Pac.  Rep.  645. 

Nevada.  Malter  v.  Falcon  M.  Co.,  18  Nev.  209,  2  Pac.  Rep.  50.  See 
Maynara  v.  Ivey,  21  Nev.  241,  29  Pac.  Rep.  1090. 

Wyoming.  See  W'yman  v.  Quayle,  9  Wyo.  326,  63  Pac.  Rep.  988,  in 
which  it  was  held  that  where  the  claim  does  not  state  the  name  of  the 
owner,  and  the  pleadings  do  not  show  that  the  name  of  the  owner  was 
unknown,  the  lien  is  ineffectual.  This  doctrine  is  questionable,  in  the 
light  of  the  authorities  and  the  principles  of  construction  of  such  stat- 
utes.    See  also  Davis  v.  Big  Horn  L.  Co.,  14  W^yo.  517,  85  Pac.  Rep.  980. 

'«  Bryan  v.  Abbott,  131  Cal.  222.  223,  224,  63  Pac.  Rep.  363.  in  which 
the  claim  stated  "  '  that  Seth  Abbott  is  the  name  of  the  reputed  owner 
of  said  premises,  and  caused  and  requested  said  William  McDonald  to 
perform  said  labor  and  furnish  said  materials';  and  the  complaint 
alleges,  '  That  at  all  the  times  herein  mentioned  said  defendant  Seth 
Abbott  was  the  owner  and  reputed  owner,  and  in  possession  of  and 
personally  occupied  the  following  described  real  property,'  "  the  court 
saying,  "The  case  of  Santa  Cruz  R.  P.  Co.  v.  Lyons,  117  Cal.  212,  48 
Pac.  Rep.  1097,  59  Am.  St.  Rep.  174,  cited  by  respondent,  does  not, 
either  directly  or  indirectly,  hold  that  the  recorded  notice  of  lien  must 
state  the  name  of  the  owner,  but  the  reasoning  of  the  case  and  the 
conclusion  reached  is  entirely  consistent  with  Corbett  v.  Chambers, 
109  Cal.  178,  181,  41  Pac.  Rep.  873." 

"  Castagnetto  v.  Coppertown  M.  &  S.  Co.,  146  Cal.  329,  80  Pac.  Rep.  74. 

'8  Hicks  V.  Murray,  43  Cal.  515,  521  (1868);  Phelps  v.  Maxwell's 
Creek  G.  M.  Co..  49  Cal.- 336,  339  (1868);  West  Coast  L.  Co.  v.  Newkirk, 
80  Cal.  27.5.   277,   22  Pac.  Rep.  231. 

Montana.  See  Richards  v.  Lewisohn,  19  Mont.  128,  132,  47  Pac.  Rep. 
645   (under  Comp.  Laws.  §§  1371,  1372). 


323  CONTEXTS   UP    CLAIM    OF    LIEN.  §  380 

If  claimant  does  not  know  name  of  owner  of  fee,  it  is  not 

necessary  for  him  to  say  that  he  does  not  know  tlie  name  of 
the  reputed  owner,  but,  under  such  circumstances,  the  claim 
may  be  silent  on  the  subject.'^**  But  if  in  good  faith  he  gives 
the  name  of  the  reputed  owner,  he  will  not  lose  his  lien  if  he 
should  afterwards  ascertain  that  some  other  person  is  the 
owner.*" 

Various  statements  considered.  A  claim  is  not  vitiated  by 
reason  of  a  statement  therein  that  the  husband  was  the  re- 
puted owner  of  the  lot,  and  that  the  wife  claimed  some 
rights  therein  and  had  full  knowledge  of  the  signing  of  the 
contract,  and  agreed  to  the  performance  of  the  same,  when 
the  evidence  did  not  show  that  the  plaintiff  was  not  .justified 
in  assuming  that  the  husband  was  the  reputed  owner  of  the 

"  West  Coast  L.  Co.  v.  Newkirk,  80  Cal.  275,  276,  22  Pac.  Rep.  231; 
KeUy  V.  Lemberger  (Cal.,  Sept.  15,  1896),  46  Pac.  Rep.  8.  See  McClain 
V.  Hutton,  131  Cal.  132,  138,  63  Pac.  Rep.  182,  622,  61  Id.  273. 

See  also  note  75,  this  section. 

Alaska.  A  claim  failing  to  state  tlie  name  of  the  owner  of  the 
building,  or  that  the  name  of  the  owner  was  unknown,  but  stating  the 
name  of  the  holder  of  the  legal  title  to  the  land,  and  the  name  of  the 
vendee,  at  whose  instance  the  building  was  erected,  was  held  insuffi- 
cient: Russell  V.  Hayner,  2  Alas.  702  (dig.),  130  Fed.  Rep.  90.  64  C.  C.  A. 
424  (under  Civ.  Code,  §  262;  act  of  June  6,  1900,  31  Stats.  534, 
ch.  dcclxxxvi,  containing  language  similar  to  §  1187  of  Kerr's  Cyc. 
Code  Civ.  Proe.).  This  case  is  not  in  line  with  the  authorities,  or  with 
the  better  reasoning. 

Montana.  Where  the  christian  name  was  stated  to  be  unknown,  it 
was  held  to  be  sufficient:  Richards  v.  Lewisohn,  19  Mont.  132,  47  Pac. 
Rep.  645   (Comp.  Laws,  §§  1371,  1372). 

Nevada.  Contra:  Malter  v.  Falcon  M.  Co.,  18  Nev.  209.  2  Pac.  Rep. 
50.     And  the  name  of  the  reputed  owner  should  then   be  given:   Id. 

Oregon.  See  Leick  v.  Beers,  28  Oreg.  483,  43  Pac.  Rep.  658,  citing 
Malter  v.  Falcon  M.  Co.,  supra. 

Wyoming.  The  claim  must  state  the  name  of  the  owner  or  that 
such  name  is  unknown:  Wyman  v.  Quayle,  9  Wyo.  326.  63  Pac.  Rep. 
988  (under  Rev.  Stats.  1899). 

«>  Corbett  v.  Chambers,  109  Cal.  178,  184,  41  Pac.  Rep.  873;  Santa 
Cruz  R.  P.  Co.  v.  Lyons,  133  Cal.  114,  119,  65  Pac.  Rep.  329;  Ah  Louis 
V.  Hkrwood,  140  Cal.  500,  504,  74  Pac.  Rep.  41;  McClain  v.  Hutton,  131 
Cal.  132,  138,  63  Pac.  Rep.  182,  622,  61  Id.  273,  in  which  it  was  held  that 
a  claim  of  lien  on  the  separate  property  of  the  wife,  giving  the  names 
of  the  husband  and  wife  as  the  "  names  of  tlie  owners  and  reputed 
owners  of  the  said  premises,"  is  not  void  on  the  ground  that  the  hus- 
band lias  no  interest  in  the  property. 

MiNtake  as  to  party's  intere.st.  "Still  less  can  the  validity  of  the 
claim  be  affected  by  a  mistake  in  attempting  to  carry  out  tlie  require- 
ments of  the  law":  McClain  v.  Hutton,  131  Cal.  132,  138,  63  Pac.  Rep. 
182,  622,  61  Id.  273  (as  to  name  of  owner  or  reputed  owner). 

Oregon.     See  Leick  v.  Beers,  28  Oreg.  483,  43  Pac.  Rep.  658. 


§  380  mechanics'  liens.  324 

lot,  under  an  honest  mistake  as  to  the  real  ownership,  and 
without  fraud,  or  for  the  purpose  of  deceiving  any  person.*^ 
As  the  claimant  is  not  required  to  ascertain  at  his  peril  the 
name  of  the  true  owner,  and  as  it  is  sufficient  if  he  give  the 
name  of  the  reputed  owner,  if  knoAvn,  an  otherwise  sufficient 
claim  is  not  impaired  by  the  fact  that  the  same  person  is 
designated  as  "  owner  or  reputed  owner,"  ^^  or  "  owner  and 
reputed  owner  " ;  ^^  and  in  the  case  last  mentioned,  if  it  is 
proved  that  he  was  the  reputed  owner  only,  the  claim  is  not 
ineffectual.**  And  likewise  if  the  claim  states  that  a  certain 
person  is  the  owner  of  a  house  and  the  reputed  owner  of  a 
leasehold  interest  in  the  realty.^'  In  a  case  where  the  lien 
set  forth  that  Kelly,  Reis,  and  Corbett  were  the  names  of  the 
owners  who  held  the  legal  title  to  the  premises,  and  that  Ash- 
mead  Avas  in  possession,  and  was  the  name  of  the  reputed 
owner  who  had  the  equitable  title,  this  was  held  to  be  suffi- 
cient.^"' In  either  case  it  is  only  the  opinion  of  the  claimant 
upon  matters  that  are  not  presumptively  within  his  knowl- 
edge, but  which  he  has  formed  from  "  external  "  informa- 

81  Santa  Cruz  R.  P.  Co.  v.  Lyons,  133  Cal.  114,  119,  65  Pac.  Rep.  329. 

»2  Corbett  V.  Chambers,  109  Cal.  178,  184,  41  Pac.  Rep.  873. 

IVew  Mexico.  Ford  v.  Springer  L.  Assoc,  8  N.  M.  37,  51,  41  Pac.  Rep. 
541;  s.  c.  affirmed  168  U.  S.  513,  bk.  42  L.  ed.  562,  18  Sup.  Ct.  Rep.  170; 
Minor  v.  Marshall,  6  N.  M.  194,  198,  27  Pac.  Rep.  481. 

AVashlngton.  And  this  point  cannot  be  raised  for  the  first  time  on 
appeal.  The  action  being  between  the  original  parties,  no  one  could  be 
misled  thereby:  Dearborn  F.  Co.  v.  Augustine,  5  Wash.  67,  31  Pac.  Rep. 
327. 

««  Arata  v.  Tellurium  G.  &  S.  M.  Co.,  65  CaL  340,  341,  4  Pac.  Rep.  195; 
tlie  court  saying,  "The  same  person  may  be  both  the  owner  and  the 
reputed  owner,  and  a  statement  that  a  name  is  the  name  or  the  owner 
is  none  the  less  positive  because  it  is  also  declared  to  be  the  name  of 
the  reputed  owner":  McClain  v.  Hutton,  131  Cal.  132,  138,  63  Pac.  Rep. 
182,  622,  61  Id.  273.  See  Bryan  v.  Abbott,  131  Cal.  222,  223,  224,  63  Pac. 
Rep.    363. 

Oregon.  See  W^illamette  S.  M.  L.  &  Mfg.  Co.  v.  McLeod,  27  Oreg.  272, 
40  Pac.  Rep.   93. 

AVashiiigton.  Seattle  L.  Co.  v.  Sweeney,  33  Wash.  691,  74  Pac.  Rep. 
1001   (.under  2  Ballinger's  Ann.  Codes  and  Stats.,  §  5917). 

**  Kelly  V.  Lemberger  (Cal.),  46  Pac.  Rep.  8.  See  this  case  as  to 
several  persons  being  reputed  owners. 

*^  West  Coast  L.  Co.  v.  Newkirk,  80  Cal.  275,  276,  22  Pac.  Rep.  231. 
See  Bryan  v.  Abbott,  131  Cal.  222,  223,  224,  63  Pac.  Rep.  363. 

««  Harmon  v.  Ashmead,  68  Cal.  321,  324,  9  Pac.  Rep.   183. 

Colorado.  A  claim  which  fails  to  designate  the  legal  owner,  but 
attempts  to  state  the  name  of  the  equitable  owner,  is  insufficient  as 
against  subsequent  encumbrancers  and  lien-holders:  Sprague  I.  Co.  v. 
Mouat  L.  &  I.  Co..  14  Colo.  App.  107,  60  Pac.  Rep.  179,  183  (1883). 

^Va.shington.  See  Harrington  v.  Miller,  4  Wash.  808,  812,  31  Pac 
Rep.  325. 


325  CONTEXTS   OF    CLAIM    OF    LIEN.  §  880 

tion,  and  in  that  respect  the  claim  that  he  is  to  file  differs 
from  a  pleading,  in  which  the  facts  essential  to  the  recovery 
must  be  definitely  pleaded.^^ 

The  fact  that  conveyances  to  other  persons  are  on  record 
does  not  seem  to  be  conclusive  of  the  question  of  reputed 
ownership.^^  The  claim  is  not  insufficient  because  it  states 
that  a  certain  person  was  the  owner  of  the  "  premises."  *" 

Where  the  claim  states,  among  other  things,  that  a  certain 
person  was  the  owner  of  the  "  lot "  of  land  which  is 
described,  and  that  he  entered  into  a  contract  with  certain 
other  designated  persons  to  erect  and  finish  for  him  a  build- 
ing on  the  lot,  and  that  claimant  gave  such  person  written 
notice  of  the  furnishing  of  materials,  it  is  a  sufficient  state- 
ment that  said  owner  of  the  lot  was  the  owner  of  the  build- 
ing, which  was  erected  for  him  on  his  land.®"     And  where 

s'  Corbett  v.  Chambers,  109  Cal.  178,  184,  41  Pac.  Rep.  873. 

«8  Kelly  V.  Lemberger   (Cal.),  46  Pac.  Rep.  8. 

Montana.  The  owner  mentioned  in  §§  2132-2135  of  the  Code  of  Civil 
Procedure,  whose  name  must  appear  in  the  claim,  is  the  owner  of  the 
interest  to  be  charged;  and  hence  the  statement  or  the  name  of  the 
record  owner  is  not  sufficient  to  charge  the  interest  of  the  vendee 
in  possession  who  erects  the  building:  Missoula  M.  Co.  v.  O'Donnell, 
24  Mont.  65,  60  Pac.  Rep.  594,  991. 

*»  Corbett  v.  Chambers,  109  Cal.  178,  185,  41  Pac.  Rep.  873. 

Idaho.  But  see  VV^hite  v.  Mullins,  3  Idaho  434,  31  Pac.  Rep.  801. 
And  to  state  that  a  mine  was  the  property  of  the  defendant  was  held 
not  to  be  an  allegation  of  ownership  required  by  the  statute:  Steel  v. 
Argentine  M.  Co.,  4  Idaho  505,  42  Pac.  Rep.  585,  95  Am.  St.  Rep.   144. 

Oreson.  It  is  sufficient  to  say  that  the  land  is  the  "property"  of 
(Willamette  S.  M.  L.  &  Mfg.  Co.  v.  McLeod,  27  Greg.  272,  40  Pac.  Rep. 
93),  or  was  owned  by  (Curtis  v.  Sestanovich,  26  Greg.  107,  37  Pac.  Rep. 
67),  a  certain  person,  who  caused  the  building  to  be  erected. 

Utah.  "Said  described  premises  being  the  property  of  B.  J.  Clay- 
ton," was  held  sufficient:  Morrison  v.  Willard.  17  Utah  306,  53  Pac. 
Rep.  832,  70  Am.  St.  Rep.  784. 

««  Russ  L.  Co.  V.  Garrettson,  87  Cal.  589,  595,  25  Pac.  Rep.  747.  The 
inference  from  this  seems  to  be  that  the  name  of  the  "  owner"  should 
be  that  of  the  owner  of  the  building;  but  see  reason  for  this  require- 
ment, S§  79  et  seq.,  ante. 

Oreson.  It  seems  that  the  name  of  the  owner  of  the  building 
should  be  stated:  Curtis  v.  Sestanovich,  26  Greg.  107,  37  Pac.  Rep.  67; 
Kezartee  v.  Marks,  15  Greg.  529,  535,  16  Pac.  Rep.  407;  Gordon  v.  Deal, 
23  Greg.  153,  154,  31  Pac.  Rep.  287.  See  also  Willamette  S.  M.  L.  &  M. 
Co.  V.  McLeod,  27  Greg.  272,  40  Pac.  Rep.  93;  and  see  note  ante,  this 
section. 

The  CaUfornia  ease  is  cited  in  the  first  Oregon  case,  supra. 

Pre.Hiimed  that  building  is  attaelied  to  land  upon  which  it  is  erected: 
Curtis  V.  Sestanovich,  26  Greg.  107,  37  Pac.  Rep.  67;  but  see  Gordon  v. 
Deal,  supra. 

Name  of  owner.  If  the  claimant  wishes  to  reach  or  affect  the  land 
with  his  lien,  he  should  also  state  the  name  of  the  owner  thereof: 
Kezartee  v.  Marks,  15  Greg.  529,  16  Pac.  Rep.  407. 


§  381  mechanics'  liexs.  326 

the  claim  states  that  a  certain  person  named  is  the  reputed 
owner  of  the  land,  and  that  he  and  another  person  (his  wife) 
named  are  the  reputed  owners  of  the  building,  it  is  suf- 
ficient."^ 

§  381.  Same.  Employer.  Purchaser.  The  name  of  the 
person  by  whom  the  claimant  "  was  emplo^^ed,"  or  "  to  whom 
he  furnished  the  material,"  must  be  stated  in  the  claim  of 
lien.^- 

General  rule.  If  it  appears  from  the  claim,  either  directly 
or  by  necessary  inference,  to  whom  the  materials  were  fur- 
nished, or  for  whom  the  labor  was  performed,  there  is  a 
sufficient  compliance  with  this  provision ;  ^^  and  likewise  if 

"  Palmer  v.  Lavigne,  104  Cal.  30,  32,  37  Pac.  Rep.  775. 

"2  Kerr's  Cyc.  Code  Civ.  Proc.,  %  1187;  Corbett  v.  Chambers,  109  Cal. 
178.  183,  41  Pac.  Rep.  873;  Madera  F.  &  T.  Co.  v.  KendaH,  120  Cal.  182, 
183,  52  Pac.  Rep.  304,  65  Am.  St.  Rep.  117. 

Name  of  per.son  to  T^'hom  material  -was  furnished  must  be  stated  in 
the  notice  of  lien;  and  where  such  notice  states  that  material  was 
furnished  to  a  person  named,  when  in  fact  it  was  sold  to  a  different 
person  than  the  one  named,  it  is  fatally  defective,  and  the  lien  cannot 
be  enforced:  Hogan  v.  Bigler  (Cal.  App.,  April  9,  1908),  96  Pac.  Rep. 
97. 

The  name  of  the  person  to  whom  materials  were  furnished  not 
being  stated,  as  required  by  the  code,  the  claim  of  lien  cannot  be  the 
basis  for  a  mechanic's  lien:   Id. 

See  Jones  v.  Kruse,  138  Cal.  613,  617,  72  Pac.  Rep.  146. 

See  §§  374  et  seq.,  ante;    §  411,  post. 

Colorado.  Where  the  claim  conveys  to  the  owner  sufficient  infor- 
mation as  to  the  materials  furnished,  it  may  be  adequate,  although  it 
does  not  expressly  state  that  claimant  furnished  the  same:  Sickman 
V.  Wollett,  31  Colo.  58,  71  Pac.  Rep.  1107. 

Idaho.  See  Pacific  States  S.  L.  &  B.  Co.  v.  Dubois,  11  Idaho  319,  83 
Pac.  Rep.  513,  516. 

Nevada.     See  Skyrme  v.  Occidental  M.  Co.,  8  Nev.  219,  237. 

Oregon.  Barton  v.  Rose,  85  Pac.  Rep.  1009;  Getty  v.  Ames,  30  Oreg. 
573,  48  Pac.  Rep.  355,  60  Am.  St.  Rep.  835;  Rankin  v.  Malarkey,  23 
Oreg.  593,  32  Pac.  Rep.  620,  34  Pac.  Rep.  816;  Dillon  v.  Hart,  25  Oreg. 
49,  34  Pac.  Rep.  817;  Leick  v.  Beers,  28  Oreg.  483,  43  Pac.  Rep.  658; 
Allen  V.  Elwert,  29  Oreg.  428,  44  ,Pac.  Rep.  823,  48  Pac.  Rep.  54;  Curtis 
v.  Sestanovich,  26  Oreg.  107,  37  Pac.  Rep.  67. 

Washington.  Hopkins  v.  Jamieson-Dixon  M.  Co.,  11  Wash.  308,  317, 
39  Pac.  Rep.  815.  And  where  the  claims  stated  the  name  of  the  person 
"at  whose  request"  claimants  performed  labor  and  furnished  mate- 
rials, and  that  "  at  the  special  instance  and  request  of  the  J.  Co.. 
acting  therein  by  J.,  its  president,  it  furnished  and  delivered  to  said 
J.  Co."  certain  merchandise,  they  were  held  sufTicient.  See  Sautter  v. 
McDonald,  12  Wash.  27,  31,  40  Pac.  Rep.  418. 

»3  As  to  materials  furnished  for  building,  see  note  2  Am.  &  Eng. 
Ann.    Cas.    683. 

Oregon.  The  claim  must  state  directly  or  by  necessary  inference  to 
or  for  whom  the  materials  were  furnished  or  labor  performed:  Barton 


327  MECHAXICS'   I.] ENS.  §  382 

the  claimant  puts  enough  in  his  claim  to  enable  the  owner  to 
understand  whether  the  claimant  is  an  original  contractor  or 
a  subclaimant,  or  if  it  shows  that  the  claimant  asserts  a 
personal  liability  against  the  owner  or  against  some  other 
persons  primarily,  and  against  the  owner's  property  as 
security  therefor ;  **•*  provided  that  the  owner  is  not  preju- 
diced or  misled  thereby. ^^  Thus,  while,  under  this  provision, 
the  contractual  relation  need  not  be  stated,  yet  a  statement 
of  such  relation  in  the  claim  may  furnish  the  facts  from 
which  the  name  of  the  employer  or  purchaser  is  necessarily 
inferred. ^^ 

§  382.  Same.  Under  void  statutory  original  contract. 
Where  the  statutory  original  contract  is  void,  the  labor  done 
and  materials  furnished  are  deemed  to  have  been  done  and 
furnished  at  the  personal  instance  of  the  owner,  and  the  name 
of  the  owner  may  be  inserted  as  that  of  the  employer,  or  the 
person  to  whom  the  materials  were  furnished,  instead  of  the 

V  Rose,  85  Pac.  Rep.  1009;  Nottingham  v.  McKendrick,  38  Oreg.  495, 
63  Pac.  Rep.  822,  57  Id.  195;  and  see  Getty  v.  Ames,  30  Oreg.  573,  48 
Pac.  Rep.  355,  60  Am.  St.  Rep.  835;  DHlon  v.  Hart,  25  Oreg.  49,  44  Pac. 
Rep.   817,   823,   48  Id.   54. 

'*  Malone  v.  Big  Flat  G.  M.  Co.,  76  Cal.  578,  584,  18  Pac.  Rep.  772. 

When  statement  shall  show  contract  with  contractor.  Where  the 
claim  shows  the  contractual  relation  between  the  claimant  and  the 
owner  to  be  that  of  an  original  contractor  or  subcontractor,  it  is  suffi- 
cient: as,  where  the  contract  is  that  the  contractor  shall  furnish  so 
much  labor  and  receive  a  certain  sum  per  man,  the  liability  being 
directly  to  the  contractor,  the  claim  of  lien  properly  states  the 
contract  as  being  with  such  contractor,  instead  of  with  the  laborers 
individually;  but  it  is  otherwise  if  such  contractor  simply  acts  the 
part  of  the  conductor  of  an  employment  office:  Malone  v.  Big  Flat  G. 
M.  Co.,   76  Cal.  578,  585,   18  Pac.  Rep.  772. 

See  "  Original  Contractor,"  §§  45,  60,  ante.  But  see  "  Unnecessary 
Statements,"  §§  374  et  seq.,  ante. 

»•■  West  Coast  L.  Co.  v.  Apfleld.  86  Cal.  335,  341,  24  Pac.  Rep.  993. 

A  mistake  in  christian  name  of  employer  may  not  vitiate  the  claim 
Of  lien,  if  he  was  sometimes  known  by  the  name  stated  in  the  claim: 
Jewell  V.  McKay,  82  Cal.  144,  145,  23  Pac.  Rep.  139.  The  question  was 
nrt  fully  decided,  but  went  off  on  a  point  of  practice,  as  the  finding 
was  not  attacked  by  the  specifications  of  error.  See  Harmon  v.  San 
Francisco  &  S.  R.  R.  Co.,  86  Cal.  617,  619,  25  Pac.  Rep.  124. 

AVashin^ton.  And  where  the  employer  was  named  "  I.  B.  &  L.  Asso- 
ciation," instead  of  "  I.  B.  &  L.  Company,"  the  variance  is  immaterial, 
vhere  the  corporation  is  making  the  improvement,  as  it  could  not  have 
been  misled;  but  it  w^as  said  that  the  rule  might  be  different  if  the 
corporation  had  not  contracted  for  the  improvement:  Installment  B.  & 
L.  Co.  V.  \Ventworth,  1  Wash.  467.  25  Pac.  Rep.  298. 

»«  See  §  391,  post. 


§  383  mechanics'  liens.  328 

contractor,  or  other  person  to  or  for  whom  the  same  were 
furnished  or  done ;  ■''  but,  on  the  other  hand,  under  such 
circumstances,  it  will  not  vitiate  the  claim  if  only  the  name 
of  the  person  for  whom  the  labor  was  actually  performed  or 
to  whom  the  materials  were  actually  furnished  is  given.®^ 

§  383.  Same.  Inferential  statements.  In  accordance  with 
the  general  principles  laid  down  in  the  preceding  sections,  a 
statement  from  which  the  name  of  the  employer  or  purchaser 
is  necessarily  inferred  is  sufficient. 

Contractual  relation.  Request.  A  claim  which  states 
that  the  labor  in  a  mining  claim  was  performed  at  the 
request  of  a  person  named  is  substantially  a  statement  that 
he  was  employed  by  such  person,  and  is  sufficient  in  this 
respect.^** 

Indebtedness.  A  claim  stating  that  claimant  furnished 
materials  under  a  contract  with  the  contractors,  naming 
them,  by  which  they  agreed  to  pay  the  market  value  thereof 
at  the  date  of  delivery,  and  that  claimant  duly  gave  a  written 
notice  to  the  owner,  naming  him,  that  he  had  agreed  to  fur- 
nish materials,  as  aforesaid,  sufficiently  states  the  names  of 
the  persons  to  whom  the  materials  were  furnished. ^"^ 

Where  the  claim  states  "  that  H.  and  J.  W.,  who  are  the 
owners  of  said  building  and  real  estate,  are  indebted  to  us  in 
the  sum  of  nine  hundred  and  thirty-four  dollars  and  seventy 
cents,  in  gold  coin,  for  materials  furnished  to  and  used  by 
said  H.  and  J.  W.  in  the  erection  of  said  building,"  the  claim 
sufficiently  states  by  whom  the  contract  w^as  made  and  the 
persons  to  whom  the  material  was  furnished. ^°^ 

Where  the  claim  states  that  certain  work  Avas  performed 
for  a  person  named,  and  that  said  person  ordered  certain 
extra  work,  and  agreed  to  pay  the  reasonable  value  thereof, 

"  McClain  v.  Hutton,   131  Cal.   132,   63   Pac.  Rep.   182,   61   Id.   273. 

"8  McCIain  v.  Hutton,   131  Cal.   132,  63  Pac.  Rep.  182,   622,  61  Id.   273. 

"3  Castagnetto  v.  Coppertown  M.  &  S.  Co.,  146  Cal.  329,  80  Pac.  Rep. 
74. 

>Vashiii^on.  An  allegation  that  tlie  labor  was  done  at  the  request 
of  the  owner  is  equivalent  to  a  statement  that  he  was  employed  by 
him,  and  is  sufflcient:  Young  v.  Borzone,  26  Wash.  4,  66  Pac.  Rep. 
135,  421. 

i"«  Russ  L.  &  M.  Co.  V.  barrettson,  87  Cal.  589,  595,  25  Pac.  Rep.  747. 

"1  Germania  B.  &  L.  Assoc,  v.  Wagner,  61  Cal.  349,  353,  354. 


329  COXTENTS   OF    CLAIM    OF   LIEN.  §§  384,  385 

and  that  such  reasonable  value  "  of  said  labor  and  materials 

so  done  and  furnished  "  was  a  sum  mentioned,  it  is  suffi- 
cient.^°2 

§  384.  Same.  "  Causing-  "  improvement.  When  the  name 
of  the  employer  or  purchaser  cannot  be  determined  from  the 
claim,  in  accordance  with  the  rules  set  forth  in  the  preceding 
sections,  at  least  by  necessary  inference,  it  is  ineffectual. 
Thus  a  statement  in  a  claim  that  W.  caused  the  construction 
of  a  dwelling-house  is  not  in  any  sense  a  statement  of  the 
name  of  the  person  by  whom  the  plaintiff  was  employed,  and 
is  insufficient. ^°^ 

§  385.  Same.  Name  of  agent.  Under  and  subject  to  the 
rules  laid  down  in  the  preceding  sections,  it  is  not  necessary 
to  set  forth  the  name  of  a  mere  agent,  if  the  character  of  the 
liability  which  the  claimant  intends  to  assert  against  the 
owner  or  his  property  otherwise  sufficiently  appears  from 
the  claim  of  lien.^°* 

'"2  Newell   V.    Brill,    2   Cal.   App.    61,    63,    83    Pac.   Rep.    76. 

Insufficient  statement  o£  claim.  It  is  insufficient  where  the  claim 
of  the  material-man,  after  stating-  that  the  claimant  had  furnished 
materials  which  were  actually  used  in  the  construction  of  the  build- 
ing-, stated  that  P.  is  the  name  of  the  contractor,  who,  on  or  about 
the  first  day  of  March,  1894,  as  such  contractor,  and  as  agent  of  the 
owner,  K.,  entered  into  a  verbal  contract  with  said  M.  Co.,  a  cor- 
poration, by  which  said  P.  was  to  furnish  materials  for  the  construc- 
tion of  said  building;  for  such  a  statement  does  not  show  that  plain- 
tiff furnished  any  materials  to  the  contractor,  but  is  consistent  with 
their  having  been  furnished  to  some  other  person  from  whom  the 
contractor  obtained  them:  IMadera  F.  &  T.  Co.  v.  Kendall,  120  Cal. 
182,  183,  52  Pac.  Rep.  304,  65  Am.  St.  Rep.  117.  See  Newell  v.  Brill,  2 
Cal.  App.  61,   63,   83  Pac.  Rep.   76. 

>»'  Wood  V.  Wrede,  46  Cal.  637.  The  court  adds  that  it  could  not 
have  been  intended  as  such. 

Oregon.     See  Leick  v.  Beers,  28  Greg.  483,  43  Pac.  Rep.  658. 

Naming  person  caii.sing  improvement  insufficient.  Where  the  claim 
States  that  "by  virtue  of  a  contract  hei-etofore  made  with  W.  W.  Rose, 
.  .  .  in  the  erection,  material  furnished,  and  labor  on  a  certain  dwell- 
ing-house, the  ground  upon  which  said  house  was  built  and  erected 
being  at  the  time  the  property  of  Mattie  Rose,  wife  of  W.  W.  Rose, 
wlio  caused  said  dwelling-house  to  be  erected  and  built."  it  is  Insuf- 
ficient  in   this   respect:     Barton   v.    Rose,    83    Pac.    Rep.    1009. 

'<"  In  connection  ivitli  tliis  matter,  the  supreme  court  has  said: 
"The  case  of  McDonald  v.  Backus,  45  Cal.  262,  contains  the  statement 
.  .  .  that  the  notice  of  lien  is  required  to  state  facts,  and  not  mere 
conclusions  of  law.  Tills  was  said  to  show  that  a  notice  of  lien  was 
sufficient  if  it  gave  the  name  of  one  member  of  the  firm  by  which  tlie 
claimant  was  employed,  omitting  the  other  members,  and  not  giving 


§386 


mechanics'  liens.  330 


§  386.     Same.     Two  or  more  employers  or  purchasers.    A 

claim  was  held  valid  against  two  tenants  who  erected  a  build- 

the  firm  name.  Possibly  that  case  was  correctly  decided.  We  express 
no  opinion  as  to  it.  But  we  do  not  think  that  tlie  broad  statement  as 
to  conclusions  of  law  can  be  maintained.  According  to  it,  if  the 
owner  sends  his  oflice-boy  to  order  repairs  upon  a  building,  and  the 
boy  simply  tells  the  laborer  to  make  the  repairs,  without  saying  for 
whom,  the  notice  of  lien  must  give  the  name  of  the  otfice-boy  as  that 
of  the  person  by  whom  he  was  employed.  And  the  result  would  be 
similar  if  the  person  who  sent  for  the  laborer  was  himself  a  con- 
tractor. What  good  would  it  do  for  the  claimant  to  put  in  his  notice 
tlie  name  of  the  contractor's  offlce-boy,  or  that  of  any  chance  mes- 
senger,—  say  an  American  District  Telegraph  boy, — as  that  of  the 
person  by  whom  he  was  employed  ?  The  word  '  employed '  is  not 
appropriate  in  such  a  connection.  Nor  is  there  anything  in  the 
nature  of  the  case  which  would  give  such  a  meaning  to  the  word.  In 
our  opinion,  the  intention  was  that  the  claimant  should  put  enough 
in  his  notice  of  lien  to  enable  the  owner  to  understand  whether 
the  claimant  was  an  original  or  a  sub  contractor:  in  other  words, 
whether  the  claimant  asserted  that  he  contracted  with  the  owner 
and  had  a  personal  claim  against  him,  or  whether  he  contracted  with 
the  contractor,  and  looked  only  to  him  and  the  property.  The  rights 
and  duties  of  the  two  classes  of  claimants  are  materially  different  in 
several  respects,  and  it  is  important  for  the  owner  to  know  which 
attitude  the  claimant  assumes.  But  we  sliould  prefer  not  to  lay  down 
any  rule  about  facts  and  conclusions  of  law":  Malone  v.  Big  Flat  G. 
M.  Co.,  76  Cal.  578,  584,  18  Pac.  Rep.   772. 

See   "Contents   in   General,"   §370,   ante. 

As  to  contractual  relation,  see  §§  390  et  seq.,  post.  Compare:  §§  374 
et    seq.,    ante. 

As  a  matter  of  .strict  pleadin;;',  a  contract  made  by  an  agent  should, 
perhaps,  be  alleged  to  have  Ijeen  made  by  the  principal;  but  no  such 
recognition  of  the  maxim,  "  That  which  is  done  by  another,  he  himself 
does,"  is  requisite  to  the  validity  of  a  claim,  and  where  the  claim  con- 
tained a  statement  that  the  owner  agreed  to  pay  the  amount  agreed 
to  be  paid  for  the  work  and  materials,  and  that  S.  was  the  name  of 
the  contractor,  who,  "  as  such  contractor,  and  as  agent  for  and  on 
behalf  of  said  T.  (defendant),  entered  into  a  contract  with  said  M. 
(plaintiff),  under  and  by  which  "  the  work  was  done  and  materials 
furnished,  the  words  "  as  a  contractor  "  are  surplusage,  and  the  claim 
is  not  vitiated  thereby:  Mclntyre  v.  Trautner,  63  Cal.  429,  430.  See 
Slight  v.  Patton,  96  Cal.  384,  387,  31  Pac.  Rep.  248   (transcript). 

In  Hooper  v.  Flood,  54  Cal.  218,  221,  the  claim  stated  that  tlie  "said 
materials  were  furnished  to  A.  P.  for  and  as  the  agent  of  the  said  J.  I.," 
and  it  was  found  by  the  court  that  A.  F.  was  the  contractor.  No 
question  seems  to  have  been  raised  on  the  lien. 

In  Arata  v.  Tellurium  G.  &  S.  M.  Co.,  65  Cal  340.  341.  4  Pac.  Rep. 
195,  the  claim  stated  that  "  I.  L.  is  the  name  of  the  agent  and  super- 
intendent of  said  mining  company,  and  ...  as  such  agent  and 
superintendent  entered  into  a  contract  with  claimant":  held,  suf- 
ficient. See  Madera  F.  &  T.  Co.  v.  Kendall,  120  Cal.  182,  183,  52  Pac. 
Rep.   304,   65  Am.  St.  Rep.   117. 

Colorado.  See  Bitter  v.  Mouat  L.  &  I.  Co.,  10  Colo.  App.  307,  51  Pac. 
Rep.  519  (name  of  contractor,  where  contractor  filed  claim,  not 
required,  under  act  of  1883). 

Oregon.  "  Where  a  lien  Is  claimed  a'gainst  the  property  of  one 
person,    for   materials    furnished    to    and    on    account    of   another,    the 


r 


331  CONTENTS   OF    CLAIM    OF    LIEN.  §  386 

ing  upon  leased  gTound,  even  though  it  appeared  upon  the 
face  of  the  claim  that  the  original  charge  was  against  one  of 
them  alone,  and  that  the  claimant  did  not  know  at  the  time 
that  the  other  tenant  was  interested  in  the  building,  and 
that  they  were  copartners,  but  learned  the  facts  in  the  ease 
before  the  claim  of  lien  was  filed.^""  Where  the  claim  states 
that  the  materials  were  furnished  to  H.,  and  that  claimants 

law  requires  the  notice  of  the  lien  to  state  the  name  of  the  per- 
son to  whom  they  were  furnished;  but  where  a  lien  is  sought 
against  the  property  of  a  person  with  whom  the  contract  was  made, 
and  to  whom  the  materials  were  furnished,  it  is  sufficient  to  give 
the  name  of  the  owner  as  the  person  to  whom  they  were  furnished, 
although  in  fact  they  may  have  been  ordered  or  received  by  an 
agent  or  employee  of  such  owner.  In  such  case,  the  act  of  the 
agent  is  the  act  of  the  principal":  Allen  v.  Elwert,  29  Greg.  428,  433, 
44   Pac.   Rep.   823,   48   Id.   54. 

lu  Osborn  v.  Logus,  28  Greg.  302,  320,  37  Pac.  Rep.  456,  38  Id.  190, 
42  Id.  997,  it  was  held  that  the  expression,  "  the  name  of  the  person 
to  whom  he  furnished  the  materials,"  did  not  require  that  the  con- 
tractual relations  existing  between  the  lien  claimant  and  the  owner 
should  be  stated;  and  the  cases  of  Rankin  v.  Malarkey,  23  Greg.  593, 
32  Pac.  Rep.  620,  34  Id.  816;  Curtis  v.  Sestanovich,  26  Greg.  107,  37 
Pac.  Rep.  67,  and  Willamette  S.  M.  L.  &  M.  Co.  v.  McLeod,  27  Greg. 
272,  40  Pac.  Rep.  93,  holding  to  the  contrary,  are  overruled  as  not 
being    stare    decisis. 

The  AVashingtoD  cases  of  Warren  v.  Quade,  3  Wash.  750,  29  Pac. 
Rep.  827,  and  Heald  v.  Hodder,  5  Wash.  677,  32  Pac.  Rep.  728,  were 
rejected  as  authority.  See  Washington  note,  §  391,  post.  See  also 
Cross  V.  Tscharnig,  27  Greg.  49,  39  Pac.  Rep.  540. 

In  Curtis  v.  Sestanovicb,  26  Greg.  107,  37  Pac.  Rep.  67,  the  claim  set 
forth  that  the  claimant  had  furnished  materials  which  were  used  in 
constructing  a  certain  building,  "and  that  the  materials  so  fur- 
nished to  said  S.  and  used  in  said  building"  consisted  of,  etc.;  held, 
that  it  sufficiently  states  that  the  materials  were  furnished  to  S. 

So  where  the  claim  reads:  "I,  R.,  have,  by  virtue  of  a  contract 
made  with  H.,  with  K.  and  H.,  his  contractors  and  agents,  furnished 
materials  and  done  work  in  plastering,"  the  contractor  being  the 
agent  of  the  owner  under  the  statute,  and  the  meaning  being  made 
plain  by  transposing  some  of  these  words:  Rowland  v.  Harmon, 
24  Greg.  529,  34  Pac.  Rep.  357.  And  see  Nottingham  v.  McKendrick, 
38  Greg.  495,  57  Pac.  Rep.   195. 

Washington.  Where  the  claim  states  that  the  materials  were 
furnished  at  the  request  of  a  certain  person,  as  agent  of  B.,  as 
agent  for  eight  others,  it  is  insufficient  for  failing  to  show  authority 
to  bind  such  alleged  principal:  Northwest  B.  Co.  v.  Tacoma  S.  B. 
Co.,  36  Wash.  333,  78  Pac.  Rep.  996  (under  2  Ballinger's  Ann.  Codes 
and   Stats.,    §  5900). 

■»•"'  West  Coast  L.  Co.  v.  Apfield,  86  Cal.  335,  341,  24  Pac.  Rep.  993.  It 
will  be  noticed  in  this  case,  liowever,  that  there  was  a  statement  of 
the  persons  to  whom  the  materials  were  furnished.  The  court  say: 
"The  defendant  was  not  misled  or  prejudiced  by  reason  of  the 
claimant  stating  the  whole  fact  in  its  notice  of  lien."  And,  on  tlie 
other  hand,  in  Tibbetts  v.  Moore,  23  Cal.  208,  215,  under  the  statute 
of    1856,    as    amended,    which    did    not    require    tlie    claim    of    lien    to 


§  386  mechanics'  liens.  332 

were  employed  by  both  H.  and  A.  to  furnish  the  same,  it  is 
sufficient;  and  it  is  no  variance  if  the  evidence  shows  that 
the  materials  were  furnished  to  H.,  the  contractor,  and  that 
N.,  the  owner,  originally  contracted  for  them,  and  H,,  by  giv- 
ing an  order  for  the  payment,  admitted  his  liability  to  pay 
for  them,  no  injury  having  resulted  to  the  owner.^°®  But  the 
claim  is  insufficient  if  it  gives  the  names  of  several  persons 
to  whom  different  portions  of  the  materials  were  furnished 
at  different  times,  without  any  designation  of  what  portion 
was  furnished  to  each  several!}- ."^ 

contain  any  names,  it  was  held  that  where  the  claim  states  that 
the  materials  were  furnished  to  A.  &  Co.,  when  in  fact  they  were 
furnished  to  A.,  this  does  not  invalidate  the  lien. 

Leasehold  estate  .subject  to  mechanics'  liens:  See  2  Am.  &  Eng. 
Ann.  Cas.  687,  3  Id.  1096. 

Same.  Surrender  by  tenant  will  not  defeat  lien:  3  Am.  &  Eng.  Ann. 
Cas.    1098. 

Oregon.  See  Osborn  v.  Logus,  28  Oreg.  302,  37  Pac.  Rep.  456,  38  Id. 
190,    42    Id.    997,    citing   Tibbetts   v.    Moore,    supra. 

"«  Reed  v.  Norton,  90  Cal.  590,  595,  26  Pac.  Rep.  767,  27  Id.  426, 
and  see  Davis  v.  Livingston,  29  Cal.  283,  289. 

See  "Materials  Furnished,"  §87,  ante;   "Notice,"  §§486  et  seq.,  post. 

In  Arata  v.  Tellurium  G.  &  S.  M.  Co.,  65  Cal.  340,  341,  4  Pac.  Rep. 
195,  the  claim  stated  that  "  I.  L.  is  the  name  of  the  agent  and 
superintendent  of  said  mining  company,  who,  on  or  about  the  tenth 
day  of  November,  1882,  as  such  agent  and  superintendent,  entered 
into  a  contract  with  said  B.  A.  K.,"  etc.;  and  it  was  held  sufficient. 

In  Slight  V.  Patton.  96  Cal.  384,  387,  isl  Pac.  Rep.  248,  the  tran- 
script shows  that  the  claim  of  lien  stated:  "That  T.  &  G.  are  the 
names  of  the  contractors,  who,  on  or  about  ...  as  such  contractors, 
and  agents  of  said  owners,  entered  into  a  contract  with  said  Slight, 
under  and  by  which  said  Sliglit  was  to  perform  certain  labor  anc? 
furnish  certain  materials  therefor"  (giving  a  statement  of  thp 
terms,  time  given,  and  conditions  of  the  contract),  "and  that  sair* 
contract  has  been  fully  performed  on  the  part  of  said  Slight":  held 
a  sufficient  statement  of  the  names  of  the  persons  by  whom  the 
claimant  was  employed  and  to  whom  he  furnished  the  materials. 

New  Mexico.  Where  the  claim  stated,  "Claimant  was  employed 
to  do  said  work  by  the  Springer  Land  Association,  C.  N.  Barnes,  gen- 
eral manager,  approved  by  C.  C.  Strawn,  as  president";  held,  suffi- 
cient: Ford  V.  Springer  L.  Assoc,  8  N.  M.  37,  52,  41  Pac.  Rep.  541. 

'Washington.  A  claim  which  states  that  the  claimant  was 
employed  by  two  persons  as  contractors  on  the  building,  when  in 
fact  one  was  but  a  subcontractor,  will  not  invalidate  the  lien,  espe- 
cially in  view  of  the  fact  that  the  claimant  had  been  told  by  both 
that  they  were  contractors  for  the  erection  of  the  building:  McHugh 
v.  Slack,   11  Wash.  370,   39  Pac.  Rep.   674. 

"'  Gordon  H.  Co.  v.  San  Francisco  &  S.  R.  R.  Co.  (Gal.,  Oct.  4,  1889), 
22  Pac.  Rep.  406   (this  is  a  strict  construction  of  the  statute). 

ColorE<lo.  A  claim  of  lien  failing  to  state  that  a  certain  portion 
of  the  materials  for  which  the  lien  was  claimed  was  furnished  by 
the  claimant  is  insufRcierit  as  to  such  portion:  Sickman  v.  AVoUett, 
31   Colo.   58,  71  Pac.  Rep.   1107. 


333  CONTENTS    OP    CLAIM    OF    LIEN.  §§  387,  388 

§  387.  Terms,  time  given,  and  conditions  of  contract.  In 
general.  The  statute,  in  many  jurisdictions,^°'*  provides  that 
a  claim  shall  be  filed,  containing  a  "  statement  of  the  terms, 
time  given,  and  conditions  of  his  contract."  ^"^ 

The  exact  meaning  of  some  of  these  words  does  not  seem 
to  have  been  carefully  defined  in  the  California  decisions. 
They  appear  to  be  used  in  the  statute  in  a  sense  different 
from  that  of  ''  demand."  ^^° 

§  388.     Same.     Object  and  construction  of  provision.     It 

has  already  been  seen  that  the  general  object  of  the  claim  of 
lien,  so  far  as  furnishing  notice  to  others  is  concerned,  is  to 
inform  the  owner  primarily  of  the  claim,  in  order  that  he 
may  protect  himself  in  his  dealings  with  others,"^  this 
being  particularly  the  purpose  of  this  provision ;  ^^-  and  if  no 

i»s  See  Kcrr'.s  Cyc.  Code  Civ.  Proc,  §  1187. 

"8  Hooper  v.  Flood,  54  CaL  218,  221;  Wilson  v.  Nugent,  125  Cal.  280, 
283,  57  Pac.  Rep.  1008;  Nofzlger  Bros.  L.  Co.  v.  Shafer,  2  Cal.  App.  219, 
220,   83   Pac.   Rep.   284. 

See,  generally,  §§  370  et  seq.,  ante,  and  "  Variances,"  §§  835  et  seq., 
post. 

Idaho.  "White  v.  Mullins,  3  Idaho  434,  31  Pac.  Rep.  801  (under  Rev. 
Stats.,  §  5130). 

Wa.sliingtou.  See  United  States  S.  L.  &  B.  Co.  v.  Jones,  9  W^ash. 
434,  37  Pac.  Rep.  666. 

Act  o£  1893.  Statement  required  under.  Although  it  was  stated 
that  the  act  of  1893  did  not  require  a  statement  of  the  terms  of  the 
contract  (Hopkins  v.  Jamieson-Dixon  M.  Co.,  11  Wash.  308,  317,  39 
Pac.  Rep.  815),  yet  subsequent  cases  seem  to  hold  impliedly  that  sucli 
is  necessary.  There  is  evidently  a  difference,  however,  between  stat- 
ing the  general  contractual  relation  between  the  parties  and  stating 
the   terms   and   conditions   of   the   contract. 

The  lien  law  in  force  wlien  the  earlier  decitiion.s  were  rendered 
was  superseded  by  the  statute  of  1893,  and  under  tliis  statute  It  was 
not  necessary  to  set  forth  the  terms  of  the  contract:  Greene  v.  Fin- 
nell,   22   Wash.   186,   60  Pac.   Rep.   144. 

""  See  SS  375  et  seq.,  ante. 

"Washington.  Under  General  Statutes,  §  667,  requiring  a  statement 
of  the  terms,  if  any,  it  seems  that  the  expression  was  considered  as 
equivalent  to  the  time  and  method  of  payment:  Fairhaven  L.  Co.  v. 
Jordan,   5   Wash.   729,   32   Pac.   Rep.   729. 

A  "statement"  does  not  seem  to  be  an  "account":  See  Gates  v. 
Brown,  1  Wash.  470,  473,  25  Pac.  Rep.  914. 

">  See   §  365,   ante. 

"»  Wilson  V.  Nugent,  125  Cal.  280,  283,  57  Pac.  Rep.  1008;  Wagner 
v.   Hanson.    103   Cal.    104,    37    Pac.   Rep.    195. 

\VashinKton.  The  terms  and  conditions  of  the  contract  sliould 
also  iiu-lude  a  suiUcient  allegation  of  the  materials  furnished  or  work 
done  to  enable  the  owner  independently  to  determine  the  bona  fides 
of  such  contract  and  the  reasonableness  thereof:  Warren  v.  Quade, 
3  Wash.   750,   29  Pac.   Rep.    827. 


§  389  mechanics'  liens.  334 

person  is  misled  or  deceived  by  the  statement  contained  in 
the  claim/^-'  only  a  substantial  compliance  with  the  statute 
is  required. ^^*  For  these  reasons,  a  claimant  can  recover  only 
upon  the  contract  s^t  forth  in  the  claim  of  lien.^^^ 

§  389.  Same.  General  rules.  The  statement  of  the  terms 
of  the  contract  must  be  substantially  true  in  all  essential  par- 
ticulars ;  otherwise  the  claim  is  ineffectual.^^*'  The  statute 
does  not  require  the  claimant  to  state  Avhat  is  implied  by 
law.^^^  A  statement  in  the  claim  that  the  following  is  a 
statement  of  the  terms,  etc.,  of  the  contract  must  be  taken 

113  Person  not  being  misled:  NeweU  v.  Brill,  2  Cal.  App.  61,  62,  8.1 
Pac.  Rep.  76;  Bryan  v.  AbV)Ott,   131  Cal.  222,   224,   225,   63  Pac.  Rep.   363. 

Person  mi.sled:  Wilson  v.  Nugent,  125  Cal.  280,  283,  57  Pac.  Rep. 
1008. 

Colorado.  For  benefit  of  owner,  not  being  misled:  Chicago  L.  Co. 
V.    Newcomb,    19    Colo.    App.    265,    74    Pac.    Rep.    786. 

'"  Castagnetto  v.  Coppertown  M.  &  S.  Co.,  146  Cal.  329,  332,  80  Pac. 
Rep.    74. 

"3  San  Francisco  P.  Co.  v.  Fairfield,  134  Cal.  220,  222,  224,  66  Pac. 
Rep.    255. 

"6  star  M.  &  L.  Co.  v.  Porter  (Cal.  App.,  Nov.  24,  1906),  88  Pac. 
Rep.  497;  Wilson  v.  Nugent,  125  Cal.  280,  283,  57  Pac.  Rep.  1008; 
Nofziger  Bros.  L.  Co.  v.  Shafer,  2  Cal.  App.  219,  220,  83  Pac.  Rep.  284 
(decided  Nov.,  1905,  before  amendment  of  1907).  The  statement  in 
the  last  two  cases,  that  the  claim,  in  this  regard,  must  be  true, 
that  is,  absolutely  true,  goes  beyond  what  reason  and  authority 
warrant,  especially  since  the  enactment  of  §  1203a,  Kerr's  Cyc.  Code 
Civ.   Proe. 

Sufficient  statements.  Where  the  statement  is  that  the  materials 
were  to  be  delivered  in  such  quantities  as  might  be  directed  during 
the  progress  of  the  construction  of  the  building,  and  that  claimant 
"  was  to  be  paid  thereafter  therefor,  on  demand  of  payment  as  to 
each  delivery  of  any  quantity  on  said  property  by  him,  the  reason- 
able market  value  thereof,"  it  Is  sufficient:  Snell  v.  Payne,  115  Cal. 
218,    221.    46    Pac.    Rep.    1069. 

See    "  Unnecessary    Statements,"    §§  374    et    seq.,    post. 

Colorado.     See  Branham  v.  Nye,  9  Colo.  App.   19.  47  Pac.  Rep.   402. 

A  claim  not  stating  expressly  that  the  materials  ^-ere  furnished 
by  claimant,  or  by  whom  they  were  furnished,  may  be  sufficient: 
Sickman   v.   Wollett,    31   Colo.   58,   71   Pac.   Rep.    1107. 

AVashinston.  And  so  where  the  claim  states  that  the  claimants 
were  to  furnish  material  and  do  the  work  necessary  to  the  full 
completion  of  the  painting  of  the  building:  Spears  v.  Lawrence,  10 
Wash.  368,  38  Pac.  Rep.  1049,  45  Am.  St.  Rep.  789.  W'here  the  claim 
of  a  subclaimant  set  forth  that  materials  were  actually  used  in  the 
construction  of  the  building,  and  subsequently  that  the  contract  was 
for  materials  for  the  building,  this  is  a  sufficient  statement  that  they 
were  furnished  to  be  used  in  the  building:  Fairhaven  L.  Co.  v.  Jor- 
dan,   5    Wash.    429,    32    Pac.    Rep.    729. 

"'  Jewell    V.    McKay,  -82   Cal.    144,    151,    23   Pac.    Rep.    139. 


335  CONTENTS   OF    CLAIM    OP    LIEN,  §  389 

to  mean  the  only  terms  which  were  in  fact  expressly  agreed 
upon.^" 

It  cannot  be  presumed,  in  the  absence  of  allegation  and 
proof,  that  the  statement  and  conditions  of  the  contract  set 
forth  in  the  claim  did  not  include  all  the  conditions  of  the 
contract.^^^ 

"s  InipIicatiunH  o£  law  need  not  be  stated.  "  The  code  does  not 
require  the  notice  to  state  implications  made  by  law.  For  example, 
if  there  was  nothing  but  a  request  for  labor  or  materials,  and  a  silent 
compliance  with  it,  we  do  not  think  that  a  statement  of  the 
implied  promise  to  pay  what  the  labor  or  materials  were  reason- 
ably worth  would  be  necessary.  It  seems  to  us  that  the  statute 
requires  only  the  agreement  which  is  expressly  made  to  be  stated 
In  the  notice.  .  .  .  We  think  that  the  statement  that  '  the  follow- 
ing is  a  statement  of  the  terms,'  etc.,  of  the  contract  must  be  taken 
to  mean  the  only  terms  which  were  in  fact  agreed  upon":  Jewell  v. 
McKay,    82    Cal.    144,    152,    23    Pac.    Rep.    139. 

A  number  of  statements  o£  the  "terms,  time  given,  and  conditions 
of  contracts  "  are  set  out  in  this  opinion.  See  Goss  v.  Strelitz, 
54  Cal.  640,  643;  Golden  Gate  L.  Co.' v.  Sahrbacher,  105  Cal.  114,  US, 
38  Pac.   Rep.  635,  and  see  transcript  and  briefs  on  file. 

Xevada.     See  Lonkey  v.  Wells,   16  Nev.   271. 

"»  Kelly  V.  Plover,  103  Cal.  35,  36,  36  Pac.  Rep.  1020. 

See  "Contents,"  §370,  ante;  -'Unnecessary  Statements,"  §§374  et 
seq.,  ante. 

And  so  where  the  claim  states  tliat  the  '•  following  is  a  state- 
ment of  the  terms,  time  given,  and  conditions  upon  which  said  work 
and  labor  was  performed,  to  wit,  the  same  was  to  be  paid  for  in 
lawful  money  of  the  United  States  when  the  work  was  completed," 
or  that  "  the  following  is  a  statement  of  the  terms,  time  given,  and 
conditions  upon  which  said  materials  as  aforesaid  were  furnished, 
to  wit,  such  materials  were  to  be  paid  for  when  said  alterations 
and  repairs  on  said  building  were  completed  and  flnished,  in  lawful 
money  of  the  United  States,"  these  statements  must  be  taken  to 
mean  the  only  terms  which  were  in  fact  agreed  upon:  Jewell  v. 
McKay,    82   Cal.    144,    147,    149,    152,    23   Pac.    Rep.    139. 

AVashiugton.  WHiere  the  claim  set  forth,  in  its  statement  of  the 
terms  of  the  contract,  that  the  claimant  was  "to  furnish  the  hard- 
ware and  other  like  material"  for  a  certain  building,  or  "to  fur- 
nish the  lumber,  sashes,  doors,  etc  used,  in  the  construction  of  said 
Lighthouse  Block,  at  the  agreed  and  contract  price  of  $2,449.85,"  it 
was  held  sufficiently  definite  in  that  particular,  it  meaning,  in  the 
first  instance,  "all  the  hardware  to  be  used  in  the  building": 
Bolster  v.  Stocks,  13  Wash.  460,  43  Pac.  Rep.  532,  534,  1099,  which 
attempts  to  distinguish  Tacoma  L.  Co.  v.  Wolff,  5  Wash.  264,  31  Pac. 
Rep.  753,  33  Id.  1055,  in  which  the  language  employed  in  the  claim 
was  that  the  claimant  should  "furnish  certain  windows,  doors, 
moldings,  glass,  and  lumber  for  the  inside  finish  of  said  building," 
as  "there  was  nothing  to  indicate  that  all  the  windows,  etc.,  were 
to  be  furnished  under  the  contract."  But  in  Bolster  v.  Stocks,  supra, 
it  was  also  held  that  where  the  claim  stated  that  the  claimants 
"furnished  certain  goods,  wares,  and  merchandise,  being  iron, 
iron-work,  galvanized  iron,  nails,  paints,  glass,  and  other  build- 
ing material,  which  were  reasonably  worth  and  of  the  value  of 
$1,646.56,"   it  was   held  to   be   insufficient,   and  to  fall   within   the   rule 


§  389  mechanics'  liens.  336 

The  statement  of  the  terms,  time  given,  and  conditions  of 

the  contract  may  appear  on  the  face  of  the  claim  to  be  fatally 
defective,  or  it  may  rest  upon  allegations  and  proof  to  show 
such  defect. ^-° 

A  general  statement  of  the  terms,  time  given,  and  condi- 
tions of  the  contract,  only,  is  required,  and  all  the  details  of 
the  contract  need  not  be  stated.^^^ 

of  Tacoma  Lumber  Co.  v.  Wolff,  supra,  although  there  was  an 
itemized  statement  in  the  claim,  which,  however,  it  was  said  was 
indefinite  as  to  quantity,  and  the  item  "material  in  bank-room" 
did  not  indicate  even  the  kind  of  material;  but  it  is  there  held  that 
the  languag-e,  "  to  furnish  the  hardware  and  other  like  material 
for  the  construction,"  etc.,  means  "all  the  material,"  and  the  rule 
of  Tacoma  Lumber  Co.  v.  Wolff  was  characterized  as  one  of  "close 
construction,"  not  to  be  extended.  Where  the  claim  stated  that 
C.  promised  to  pay  for  the  materials  sold,  at  certain  prices,  upon 
delivery,  and  that  there  was  a  delivery,  and  this  was  the  substance 
of  the  contract  as  pleaded  and  proved,  an  averment  of  the  answer 
setting  up  an  agreement  to  deliver  within  a  certain  time,  which  the 
plaintiff  failed  to  do,  is  a  matter  of  defense,  and  until  this  defense 
is  established,  the  contract  price  is  presumed  to  be  as  claimed  by 
the  plaintiff:  Washington  M.  Co.  v.  Craig,  7  Wash.  556,  35  Pac.  Rep. 
413.  See  Fairhaven  L.  Co.  v.  Jordan,  5  Wash.  729,  734,  32  Pac.  Rep. 
729;  Mras  v.  Duff,  11  Wash.  36,  39  Pac.  Rep.  267;  United  States  S.  L. 
&  B.  Co.  v.  Jones,  9  Wash.  434,  437,  37  Pac.  Rep.  66;  Bolster  v.  Stocks, 
13  Wash.   460,  43  Pac.  Rep.   532,   534,  1099. 

"«  Jewell  V.  McKay,  82  Cal.  144,  151,  23  Pac.  Rep.  139.  See  Castag- 
netto  V.  Coppertown  M.  &  S.  Co.,   146  Cal.  329,  332,  80  Pac.  Rep.  74. 

Washington.  See  Mras  v.  Duff,  11  Wash.  36,  39  Pac.  Rep.  267;  Ta- 
coma L.  &  M.  Co.  v.  Kennedy,  4  Wash.  305,  30  Pac.  Rep.  79. 

"1  Statement  as  to  improvement.  Where  the  claim  stated  that 
"  said  house  was  to  be  erected,  to  consist  of  five  rooms,  and  to  be 
finished  in  a  workmanlike  manner,  for  the  agreed  price  of  seven 
hundred  and  forty  dollars;  that,  in  addition,  extra  work  for  the 
agreed  price  of  five  dollars  was  performed";  the  contract  having 
provided  for  the  payment  of  five  hundred  dollars  as  the  work  pro- 
gressed, and  the  balance  when  the  house  was  finished,  —  the 
supreme  court  said:  "The  respondent  contests  the  sufficiency  of 
this  notice,  upon  the  ground  that  it  does  not  state  that  the  plaintiff 
agreed  to  furnish  all  the  material  and  labor  for  the  house  (except 
painting),  and  does  not  state  that  the  contract  price  was  to  be  paid 
in  instalments  as  the  work  progressed.  The  provision  of  §  1187  of  the 
Code  of  Civil  Procedure,  that  the  notice  of  lien  was  to  contain  a 
statement  of  the  '  terms,  time  given,  and  conditions  of  the  contract,' 
is  not  to  be  construed  as  requiring  a  statement  of  all  the  details 
of  the  contract,  but  is  to  receive  a  reasonable  construction,  in  view  of 
the  purpose  for  which  it  is  manifestly  required.  .  .  .  The  present 
case  is  not  one  where  the  owner  is  brought  into  relation  with  the 
claimant  by  reason  of  labor  performed  for  and  materials  furnished  to 
another  person,  of  which  he  has  only  such  knowlfedge  as  is  given 
by  the  notice  of  lien  which  is  filed.  Here  the  owner  contracted  for 
the  improvement  directly  with  the  person  claiming  the  lien,  and 
therefore  had  full  knowledge  of  the  terms  of  the  contract.  It  is 
not    contended    that    the    claimant    made    an    erroneous    statement    of 


337  CONTENTS   OP    CLAIM    OF    LIEN.  §  390 

§  390.  Same.  Showing  contractual  indebtedness.  Apart 
from  the  question  of  the  time  of  payment,  and  the  other 
essentials  of  the  claim,  the  statement  required  by  the  provis- 
ion in  relation  to  the  terms,  time  given,  and  conditions  of  the 
contract  is  sufficient  if  it  shows  that  a  contract  was  entered 
into,  and  gives  such  a  declaration  of  its  terms  as  to  show  the 
indebtedness  claimed.^--  It  is  not  necessary  to  set  forth 
the  contract  Avith  as  much  particularity  as  in  a  pleading ;  ^-^ 

the  terms  of  the  contract  in  his  notice  of  lien,  or  that  there  was  any 
time  given,  or  condition  thereto,  other  than  as  stated  in  the  notice, 
the  claim  being  that  he  did  not  set  forth  that  the  contract  price  was 
to  be  paid  in  instalments  as  the  work  progressed.  He  did,  however, 
state  the  correct  amount  of  the  contract  price,  and  the  amount  that 
had  been  paid  thereon,  and  this  exceeded  the  amount  of  these  Instal- 
ments. We  are  of  the  opinion  that  this  was  a  substantial  com- 
pliance with  the  above  provision  of  §  1187,  and  entitled  him  to 
enforce  the  lien":  McGinty  v.  Morgan,  122  Cal.  103,  54  Pac.  Rep.  392. 
But   see   "  Purpose   of   Claim,"    §  365,   ante. 

The  court,  in  it.«*  reasoninj;-  that  the  claimant  contracted  directly 
with  the  owner,  seems  to  overlook  the  fact  that  the  claim  is  filed 
for  the  information  of  other  persons  than  the  owner,  such  as  other 
lien  claimants  and  encumbrancers,  who  may  have  no  knowledge  of  the 
contract  except  by   such   claim   of  lien. 

Colorado.  A  general  statement  only  required:  Branham  v.  Nye, 
9    Colo.    App.    19.    47    Pac.    Rep.    402. 

»^  McClain  v.  Hutton,  131  Cal.  132,  137,  63  Pac.  Rep.  182,  622,  61  Id. 
273. 

'-•  Showing  as  to  tiiiantity,  time,  value,  etc.  In  this  connection 
the  supreme  court  has  said:  "There  are  many  contracts  which 
deal  with  details  of  quantity,  time,  value,  etc.  But  even  with  regard 
to  such  contracts  it  seems  questionable  whether  it  is  necessary  for 
the  notice  of  lien  to  set  forth  items.  Even  in  a  pleading  '  it  is  not 
necessary  for  a  party  to  set  forth  the  items  of  an  account  therein 
alleged':  Kerr's  Cyc.  Code  Civ.  Proc,  §454.  And  we  cannot  think 
that  the  statements  in  a  notice  of  lien  are  required  to  be  made  with 
greater  fullness  or  formality  than  is  necessary  in  a  pleading.  We  are 
not  prepared  to  say  that  as  much  fullness  or  formality  is  re- 
quired. And  it  seems  probable  that  even  in  the  case  of  a  contract 
which  went  into  details  of  amount,  etc.,  a  general  statement  thereof 
would  be  sufficient  in  the  notice  of  lien.  But  it  is  not  necessary  to 
e-press  a  definite  opinion  upon  this  question;  for  it  is  obvious  that 
there  are  many  contracts  which  do  not  go  into  details  of  amount, 
time,  value,  etc.  For  example,  a  contractor  may  go  to  the  owner  of 
a  -lumber-yard  and  say,  '  I  am  building  such  and  such  a  building. 
Will  you  let  me  have  lumber  for  it  as  I  need  it,  at  ruling  rates  ?' 
If  this  should  be  agreed  to,  and  the  lumber  supplied,  without  any- 
thing further  being  said,  it  seems  plain  that  an  itemized  account 
would  not  be  involved  in  a  statement  of  the  '  terms,  time  given,  and 
conditions  of  the  contract.'  So  if  a  laborer  should  be  employed  at  a 
fixed  rate  for  an  indefinite  period,  the  number  of  days  he  worked 
would  not  be  a  part  of  the  contract,  and  consequently  would  not 
have  to  be  stated  in  the  notice.  So  if  he  should  be  employed  with- 
out a  fixed  rate  of  compensation,  such  compensation  could  not  be 
said  to  be  a  part  of  the  'terms,  time  given,  or  conditions'  of  the 
contract":  Jewell  v.  McKay,  82  Cal.  144,  151,  23  Pac.  Rep.  139. 
Mech.  Liens  —  22 


§  891  mechanics'  liens.  338 

and,  of  course,  where  the  statement  of  the  contract  would  be 
sufficient    as    a    complaint    in    indebitatus    assumpsit,    it    is 

sufficient.^-"' 

§  391.     Same.     Setting  out  terms  of  original  contract.  The 

expression  "  his  contract "  refers  to  the  contract  of  the 
claimant  under  which  he  performed  the  labor  or  furnished 
the  materials ;  and,  of  course,  in  the  case  of  the  original  con- 
tractor, the  terms,  time  given,  and  conditions  of  the  original 
contract  must  be  set  forth ;  but  in  the  case  of  subclaimants, 
no  reference  to  such  original  contract  in  the  claim  of  lien  is 
necessary.^^^ 

12*  McClain  v.  Hutton,  131  Cal.  132,  136,  63  Pac.  Rep.  182,  622,  61  Id. 
273. 

1=5  See  NeweH  v.   Brill,   2  Cal.   App.   61,    62,   83   Pac.   Rep.   76. 

Colorado.  The  terms  and  conditions  of  the  subcontractor's  con- 
tract should  be  set  out  by  him:  Harris  v.  Harris,  9  Colo.  App.  211,  47 
Pac.  Rep.  841;  but  he  is  not  required,  under  this  language,  to  set 
out  the  contract  of  the  original  contractor  with  the  owner:  Harris 
V.  Harris,  9  Colo.  App.  211,  47  Pac.  Rep.  841;  nor  refer  to  the  origi- 
nal statutory  contract:  Chicago  L.  Co.  v.  Newcomb,  19  Colo.  App. 
265,    74    Pac.    Rep.    786. 

A  statement  that  "on  or  about  the  tenth  day  of  July  said  John 
H.  Harris,  the  owner,  agreed  with  claimants  that  if  they  would  do 
the  plastering  and  furnish  materials  therefor,  he  would  pay  claim- 
ants the  sum  of  two  hundred  and  fifty  dollars,"  if  proven,  will  show 
an  original  contract  between  the  claimant  and  the  owner:  Harris 
V.  Harris.   18  Colo.  App.   34,   69   Pac.   Rep.   309. 

New  Mexico.  Subcontractor  is  not  required  to  set  out  the  terms 
of  the  original  contract:    Post  v.  Miles,  7  N.  M.  317,  34  Pac.  Rep.   586. 

Utah.  Claim  of  subcontractor  need  not  state  the  terms  of  the 
original  contract,  but  only  the  terms,  time  given,  and  conditions 
of  his  own  contract:  Brubaker  v.  Bennett,  19  Utah  401,  57  Pac.  Rep. 
170  (under  Rev.  Stats.,  §1386).  See,  generally,  Morrison  M.  Co.  v. 
Willard,  53  Pac.  Rep.  832,  where  it  is  held  that  the  claim  "should 
contain  and  set  out,  so  far  as  the  claimant  is  able  to  ascertain  and 
disclose  it,  the  contract  between  the  owner  and  the  contractor," 
since  the  lien  of  the  subcontractor  depends  upon  the  terms  of  tlie 
original  contract.  This  is  not  in  line  with  the  better  reasoning  of 
the  cases  holding  the  opposite  rule.  But  see  reasoning  in  Morrison  v. 
Inter   Mountain    S.    Co.,    14    Utah    201,    46    Pac.    Rep.    1104. 

Wa.shington.  Seattle  L.  Co.  v.  Sweeney,  33  Wash.  691,  74  Pac.  Rep. 
1001  (under  2  Ballinger's  Ann.  Codes  and  Stats.,  §5904).  See  "Un- 
necessary Statements,"  §  374,  ante.  "Washington  note.  As  to  terms  and 
conditions  of  the  contract,  see  United  States  S.  L.  &  B.  Co.  v.  Jones,  9 
W^ash.  434,  37  Pac.  Rep.  666.  It  was  held  not  sufficient  to  show  that 
the  work  was  performed  and  materials  furnished  under  a  subcon- 
tract, but  the  terms  and  conditions  of  such  subcontract  should  be 
shown:  Gates  v.  Brown,  1  W^ash.  470.   474,  25  Pac.  Rep.   114    (1881). 

As  to  neee.ssity  of  subolainiant  sliovring  contractual  relation 
between  the  owner  and  tbe  employer,  see  Griffith  v.  Maxwell,  20  Wash. 
403,    55  Pac.   Rep.   571;    McHugh   v.   Slack,   11   Wash,   370,    39   Pac.   Rep. 


339  CONTENTS   OF    CLAIM    OF   LIEN.  §  392 

§  392.  Same.  Reference  to  other  papers.  A  reference  in 
a  claim  to  a  valid  filed  statutory  original  contract,  for  cer- 
tain of  the  terms,  time  given,  and  conditions  of  the  con- 
tract, —  for  instance,  the  times  when  payments  become 
due,  —  does  not  render  it  invalid,  simply  because  it  does  not 
repeat  the  provisions  of  the  original  contract,  as  all  parties 

674;  Hopkins  v.  Jamieson-Dixon  M.  Co.,  11  W^ash.  308,  316,  39  Pac.  Rep. 
815. 

The  contractual  relation  between  the  owner  and  contractor-s  is 
sufficiently  stated  by  averring-,  after  stating  the  name  of  the  owner 
and  that  she  caused  the  building  to  be  erected,  that  certain  persons 
named  are  the  contractors  for  the  construction  of  said  building: 
Sautter  v.  McDonald,   12  Wash.   27,  40  Pac.  Rep.   418. 

A  claim  which  sets  out  that  S.  is  the  name  of  the  owner  and 
reputed  owner  of  said  premises,  "and  caused  said  building  or 
structure  to  be  built  and  erected;  that  R.  is  the  name  of  the  con- 
tractor, who,  as  such  contractor,  made  and  entered  into  a  contract 
with  C,  under  and  by  which  hardware  was  to  be  furnished  for  said 
building,  sufficiently  states  the  relation  of  principal  and  agent 
between  the  owner  and  contractor":  Collins  v.  Snoke,  9  Wash.  566, 
38  Pac.  Rep.  161  (under  Gen.  Stats.,  §1667);  Sautter  v.  McDonald,  12 
Wash.  27,  31.  In  the  former  of  the  two  cases  last  cited,  it  was  said: 
•'  In  Warren  v.  Quade,  3  Wash.  750,  29  Pac.  Rep.  827,  it  was  held 
that  a  notice  is  defective  which  shows  that  the  goods  were  fur- 
nished to,  or  labor  performed  for,  a  person  named  in  the  notice,  and 
not  to  or  for  the  owner  directly,  when  the  notice  fails  to  show  such 
a  relation  existing  between  the  person  to  whom  they  were  fur- 
nished and  the  owner  as  will  bind  the  owner  under  the  lien  laws. 
This  doctrine,  of  course,  cannot  be  gainsaid;  but  in  that  case  it 
nowhere  appeared  in  the  notice  that  the  defendant  and  the  owner 
had  any  contractual  relations  whatever  with  the  parties  who  con- 
structed the  building.  ...  It  would  be  idle  for  the  notice  to  state, 
in  terms,  that  R.  was  the  agent  of  S.;  for  it  is  the  law,  and  not  the 
agreement  of  the  parties,  which  makes  the  agent,  and  the  notice 
would  not  obtain  any  additional  strength  by  stating  a  conclusion  of 
law."  And  it  was  also  said:  •'While  this  court  would  not  be 
inclined  to  give  the  lien  statutes  more  strict  construction  than  was 
given  in  Warren  v.  Quade,  supra,  and  in  the  subsequent  decisions 
which  were  governed  by  it,  we  think  it  is  not  necessary  to  relax 
the  rule   there   laid   down,  to  sustain  the  notice  in  this  case." 

In  Fairhavcn  Land  Co.  v.  Jortlaii,  5  Wash.  729,  732,  32  Pac.  Rep. 
729,  the  case  of  Warren  v.  Quade,  supra,  was  also  distinguished,  by 
saying  that  in  the  latter  case  the  claim  stated  the  name  of  the  owner 
of  the  land  and  that  another  person  was  his  contractor,  but  did  not 
aWege  the  contractual  relation  between  the  two,  whereas  in  the  for- 
mer case  it  also  recited  that  the  contractor,  as  •'  agent  "  of  the 
owner,  contracted  for  the  materials.  The  case  of  Warren  v.  Quade 
was  also  followed  in  Heald  v.  Hodder,  5  Wash.  677,  32  Pac.  Rep.  728; 
and  both  of  these  cases  were  criticized  in  the  Oregon  and  New 
Mexico  cases  cited  in  a  note  in  §  385,  ante.  In  Warren  v.  Quade. 
supra,  it  was  also  said:  "We  think  that  the  statement  of  the  terms 
and  conditions  of  the  contract  should  show  that  such  a  relation 
existed  between  the  firm  to  which  they  were  furnished  and  the 
owner  as  will  bring  it  within  the  list  of  those  who,  under  the  lien 
law,  could,  for  the  purposes  thereof,  bind  the  owner." 


§  393  mechanics'  liens. 


840 


interested  can  readily  ascertain  from  the  record  what  the 
contract  provides  upon  that  siibject.^-^  And  it  seems  that 
where  the  claim  recites  that  the  claimant  entered  into  a  con- 
tract with  the  original  contractor,  under  and  by  virtue  of 
which  he  was  to  do  all  the  painting,  staining,  varnishing,  and 
tinting,  and  to  furnish  all  necessary  materials  as  specified  in 
the  plans  and  specifications  of  the  building,  which  were  not 
set  out  in  the  claim,  it  is  not  fatally  defective. ^-^ 

§  393.     Same.    Express  and  implied  agreement  as  to  price. 

"Where  the  agreement  as  to  price  is  express,  the  price  agreed 
upon  must  be  stated,  and  it  is  insufficient  if  the  reasonable 
value  alone  be  set  forth;  and,  on  the  contrary,  where  no 
express  contract  is  made  as  to  price,  a  statement  of  an  agreed 
price  only  is  fatal  to  the  lien.^^^  But  where  the  claim  states 
the  contract  price  of  the  materials,  it  is  not  vitiated  by  the 
additional  statement  of  the  reasonable  value  thereof.^^'' 

Statement  as  to  price  of  labor.  Where  a  claim  states  that 
the  labor  was  to  be  performed  "  at  the  usual  rates,"  it  is  an- 

"«  San  Diego  L.  Co.  v.  "Wooldredge,  90  Gal.  574,  577,  27  Pac.  Rep. 
431. 

New  Mexico.  So  a  reference  to  a  copy  of  the  contract  attached  to 
the  claim  is  sufficient:  Ford  v.  Springer  L.  Assoc,  8  N.  M.  37,  41  Pac. 
Uep.     541. 

>2'  Slight  V.  Patton,  96  Cal.  384,  387,  31  Pac.  Rep.  248.  The  question 
involved,   however,   was   one   of  pleading. 

Washington.  In  a  similar  case  it  was  said:  "  If  it  clearly 
appeared  from  the  statement  of  the  terms  of  the  contract  that  the 
plans  and  specifications  were  necessary  to  an  understanding  thereof, 
and  they  were  not  attached  to  tiie  notice  of  lien,  nor  their  substance 
stated  therein,  the  sufficiency  of  such  notice  might  well  be  doubted. 
.  .  .  Such  statement,  though  only  a  brief  description  of  such 
terms  and  conditions,  is  sufficient,  in  the  absence  of  proof,  that  such 
brief  description  is  not  such  as  to  enable  the  contract  to  be  fully 
understood.  When  the  statement  is  made  that  the  plans  and 
specifications  are  briefly  described  as  follows,  and  thereafter  are 
given  the  terms  and  conditions,  it  must  be  assumed,  in  the  absence  of 
proof  to  the  contrary,  that  the  substance  of  such  plans  and  specifica- 
tions is  as  therein  stated.  The  notice  of  lien  was  sufficient,  and  the 
complaint  stated  a  cause  of  action":  Mras  v.  Duff,  11  Wash.  36,  39 
Pac.  Rep.  267.  The  statute  itself  (Laws  1893,  p.  32),  however,  did  not 
expressly  require  any  statement  of  "the  terms  and  conditions  of  the 
contract." 

^  See   "Variances,"   §§835  et  seq.,  post. 

"9  Neihaus  v.  Morgan   (Cal.,  June  2,  1896),  45  Pac.  Rep.  255. 

Elxpress  price.  See  Nofziger  Bros.  L.  Co.  v.  Shafer,  2  Cal.  App.  219, 
220. 


341  CONTENTS   OF    CLAIM    OF    LIEN.  §  393 

other  way  of  stating  "  for  wliat  it  was  reasonably  worth."  ^"^ 
And  where  the  claim  states  that  the  price  agreed  upon  was 
"  the  usual  price,  and  what  said  materials  were  reasonably 
worth  at  their  place  of  business,"  it  states,  in  legal  effect, 
that  the  materials  were  to  be  paid  for  on  delivery  at  what 
they  were  reasonably  worth ;  and  it  is  not  necessary  to  prove 
an  express  agreement  to  pay  the  reasonable  worth  of  the 
materials."^ 

No  statement  as  to  reasonableness  of  agreed  price.  Where 
the  lien  stated  nothing  as  to  the  reasonable  or  other  value  or 
agreed  price  of  the  work  and  materials,  except  the  agreed 
price  as  to  part  of  the  work,  and  the  contract  is  entire,  and 
the  testimony  showed  that,  except  as  to  one  item  of  small 

130  McClain  v.  Hutton,  131  Cal.  132,  137,  63  Pac.  Rep.  182,  622,  61 
Id.    273. 

Where   the   claim   states   that   the   owner   entered   into   the    contract 

with  certain  conti'actors,  by  which  they  agi-eed  to  erect  and  finish 
for  him  a  building-  on  a  lot,  and  that  the  plaintiff  furnished  the 
materials  under  a  contract  with  the  contractors,  by  which  they 
agreed  to  pay  the  market  value  thereof  at  the  date  of  delivery,  in 
cash,  and  the  whole  value  and  the  balance  unpaid  are  stated,  it  is 
a  sufficient  statement  of  the  terms,  time  given,  and  conditions  of  the 
contract:  Russ  L.  &  M.  Co.  v.  Garrettson,  87  Cal.  589,  595,  25  Pac.  Rep. 
747.  It  seems  from  this  decision  that  the  "market  value"  is  equiv- 
alent   to    the    "reasonable    value." 

Market  value.  See  Star  M.  &  L.  Co.  v.  Porter  (Cal.  App.,  Nov.  24. 
1906),  88  Pac.  Rep.  497;  Buell  &  Co.  v.  Brown,  131  Cal.  158,  162,  63 
Pac.  Rep.   167. 

See  "Variances,"   §§835  et  seq.,  post. 

">  Reed  v.  Norton,  90  Cal.  590,  597,  26  Pac.  Rep.  767,  27  Id.  426. 
See  La  Grill  v.  Mallard,  90  Cal.  373,  375,  27  Pac.  Rep.  294  (claim  not 
set   out   in    opinion    or    record). 

See  §  374,  ante. 

Where  the  claim  sets  forth  tlie  contract  iirice  as  "the  usual 
price  and  what  said  materials  were  reasonably  worth  at  their  place 
of  business,"  it  is.  In  effect,  a  statement  of  a  contract  on  a  quantum 
meruit;  and  while  it  might  have  been  unnecessary  to  set  out  such 
a  contract  in  the  claim  of  lien  under  the  decision  in  Jewell  v. 
McKay,  82  Cal.  144,  151,  23  Pac.  Rep.  139,  yet  such  decision  does  not 
announce  the  principle  that  where  such  a  course  is  pursued,  a 
party  shall  not  be  held  to  have  filed  a  claim  based  upon  a  quantum 
meruit:  Reed  v.  Norton,  90  Cal.  590,  597,  26  Pac.  Rep.  767,  27  Id.  426. 
See  La  Grill  v.  Mallard,  90  Cal.  373,  375,  27  Pac.  Rep.  294  (claim  not 
set  out  in   opinion   or  record). 

See  "  Evidence,"   §§  764  et  seq.,  post. 

Washington.  Where  the  claim  made  reference  to  a  bill  of  items, 
setting  forth  in  detail  all  the  materials  furnished  under  the  contract 
for  use  in  the  building,  together  with  the  reasonable  value  thereof, 
no  price  having  been  agreed  upon,  it  contains  a  sufficient  statement 
of  the  terms  of  the  contract:  Washington  R.  P.  Co.  v.  Johnson,  10 
Wash.  445,  39  Pac.  Rep.  115. 


§  394  mechanics'  liens.  342 

amount,  there  was  no  agreed  ijriee  for  any  labor,  or  labor 
and  materials,  it  was  held  that  there  is  a  fatal  variance  as 
to  all/=*- 

§  394.  Same.  Items  of  account.  It  seems  to  be  estab- 
lished that,  Avhether  the  contract  for  the  work  and  materials 
is  for  a  sum  in  gross,^^^  or  otherwise/^*  it  need  not  set  out 
the  items  of  the  account,  under  this  provision  of  the  stat- 
ute.^^^    Where  there  has  been  a  novation  of  the  original  con- 

i3»  Wagner  v.  Hansen,  103  Cal.  104,  107,  37  Pac.  Rep.  195. 

133  Heston  v.  Martin,  11  Cal.  42  (1855),  where  the  statute  required 
the  filing  of  a  just  and  true  account  of  the  demand  due  him  after 
deducting  all  proper  credits  and  offsets.  See  Hicks  v.  Murray,  43  Cal. 
515,   522,  dissenting  opinion  of  Crockett,   J. 

Statement  of  terms  of  contrast,  when  sufficient.  Where  the  claim 
states  the  time  of  contract,  the  material  furnished,  the  agreed  price, 
either  in  the  aggregate,  or,  in  the  case  of  labor,  the  rate  per  day  and 
the  number  of  days'  labor  performed,  it  is  a  sufficient  statement  of 
the  terms  of  the  contract:  McClain  v.  Hutton,  131  Cal.  132,  63  Pac. 
Rep.   182,  61  Id.  273. 

It  is  sufficient  where  the  claim  unequivocally  states  that  the  mate- 
rials furnished  were  used  on  a  building,  the  kind  of  materials  fur- 
nished whether  stone,  iron,  etc.,  or  the  price  of  the  several  items: 
McClain  v.  Hutton,  131  Cal.  132,  136,   63  Pac.  Rep.  182,   622,   61  Id.  273. 

Description  o£  the  materials  furnished,  as  "  nails,  spikes,  iron, 
steel  picks,  shovels,  and  other  like  material,"  held  to  be  too  indefinite 
and  uncertain  to  sustain  a  lien,  in  Gordon  H.  Co.  v.  San  Francisco  & 
S.  R.  R.  Co.  (Cal.,  Oct.  4,  1889),  22  Pac.  Rep.  406,  which  must  be  con- 
sidered overruled  by  later  decisions. 

Hawaii.  As  to  general  description  of  materials  being  sufficient 
unde'r  an  entire  contract  to  furnish .  all  materials  for  building,  see 
Allen  v.  Redward,  10  Hawn.  151,  161    (dictum). 

Construction  of  word  "material"  as  used  in  claim:  Allen  v.  Red- 
ward,   10  Hawn.  151,   160. 

Washington.  It  is  not  necessary  to  set  out  the  amount  for  labor 
and  the  amount  for  material,  where  the  contract  is  in  gross:  Spears 
V.  Lawrence,   10  Wash.  368,  38  Pac.  Rep.   1049,  45  Am.  St.  Rep.   789. 

134  "Where  claim  stated  that  "  labor  was  performed  by  the  day,  at 
the  agreed  price  of  $2.75  per  day,  between  the  first  day  of  August  and 
the  twentieth  day  of  September,  1901,"  on  a  certain  mine  described 
in  the  claim,  and  that  the  amount  was  justly  due  and  owing,  it  was 
held  to  be  a  sufficient  statement  as  to  the  claim  of  a  laborer,  nothing 
being  uncertain  or  in  doubt:  Castagnetto  v.  Coppertown  M.  &  S.  Co., 
146  Cal.  329,  332,  80  Pac.  Rep.  74. 

135  Brennan  v.  Swasey,  16  Cal.  141,  142.  76  Am.  Dec.  507;  Selden  v. 
Meeks  17  Cal.  128  (1862);  same  language  as  that  construed  in 
Heston  v.  Martin,  supra.  See  Golden  Gate  L.  Co.  v.  Sahrbacher.  105 
Cal.  114,  118,  38  Pac.  Rep.  635  (transcript  and  briefs),  and  Wagner 
V.  Hansen,  1()3  Cal.  104,   106,  37  Pac.  Rep.  195. 

See    ■•  Demand,"    §§  375   et   seq.,    ante. 

Sufficiency  of  statement  of  claim.  Where  the  claim  of  lien  states 
that  the  owner  is  indebted  to  the  claimant  in  a  certain  sum  for 
materials    furnished    to    and    used    by    said    owners    between    certain 


343  CONTENTS   OP    CLAIM    OF    LIEN.  §  395 

tract,  it  is  not  necessary  for  the  claimant  to  segregate  the 
materials  furnished  to  each  contractor,  in  the  claim  of  lien 
filed,  and  if  the  proof  segregates  the  amount  furnished  to 
each  of  them,  and  no  injury  can  possibly  result  to  the  owner, 
the  claim  is  sufficient. ^^*' 

Amount  of  entire  contract  price,  if  there  be  any,  however, 
must  be  truly  stated  in  the  claim;  for,  where  the  ownier  is 
not  a  party  to  the  contract,  he  has  a  right  to  be  informed  of 
the  facts  upon  which  the  claimant  claims  a  lien  upon  the 
property 


137 


§  395.  Same.  Nature  of  labor.  It  has  been  held  that  the 
terms  of  the  contract  as  to  the  nature  of  the  labor  must  be 
correctly  stated  in  the  claim.^^'^    Thus  where,  as  a  matter  of 

dates,  and  simply  aUuded  to  the  fact  that  the  material  furnished  was 
lumber,  it  was  held  a  sufficient  statement  of  the  character  of  the 
materials  and  the  quantities:  Germania  B.  &  L.  Assoc,  v.  Wag-ner,  61 
Gal.   349,   354. 

See  §  375,  ante. 

Hawaii.  Items  of  account  not  required:  Allen  v.  Redward,  10 
Hawn.    151,    160. 

Nevada.     Lonkey  v.   Wells,    16   Nev.    271. 

AVashington.  But  see  Tacoma  L.  &  Mfg.  Co.  v.  Wolff,  5  W^ash.  264. 
31  Pac.  Rep.  753,  33  Id.  1055,  in  which  it  was  held  that  quantities 
should  be  specified,  and  the  subclaimant's  claim  should  be  sufficiently 
definite  to  apprise  fairly  the  owner  of  what  he  is  charged  with,  what 
kind  of  material,  and  what  the  same  were  furnished  for;  Tacoma 
L.  &  M.  Co.  V.  Kennedy,  4  Wash.  305,  30  Pac.  Rep.  79.  See  also 
United  States  Sav.  L.  &  B.  Co.  v.  Jones,  9  Wash.  434,  439,  37  Pac.  Rep. 
666. 

Terms  and  conditions.  Sufficiency  of  statement  of.  Where  the 
statute  required  a  "  statement  "  of  the  terms  and  conditions  of  the 
contract,  it  was  said:  "The  notice  should  certainly  contain  a  state- 
ment of  the  terms  and  conditions  of  the  contract,  if  founded  upon 
an  express  contract,  and  if  upon  an  implied  one,  then  a  statement  of 
the  full  amount,  and  what  for;  if  for  different  things,  such  as 
labor  and  materials,  then  the  amount  claimed  for  each,  and  in  all 
cases  a  statement  of  what  has  been  paid  to  the  claimant  thereon.  We 
do  not  decide  that  it  is  necessary  to  give  an  itemized  statement  in  the 
nptice,  where  the  contract  or  claim  can  be  fairly  understood  without 
It.  It  would  be  a  better  and  safer  practice  so  to  do,  however,  especially 
where  the  lien  is  claimed  by  any  one  other  than  the  original  con- 
tractor":   Gates  V.  Brown,   1  Wash.   470,   25  Pac.  Rep.  914. 

"8  Harmon  v.  San  Francisco  &  S.  R.  R.  Co.,  86  Cal.  617,  619,  25  Pac. 
Rep.  124;  Gordon  H.  Co.  v.  San  Francisco  &  S.  R.  R.  Co.,  86  Cal.  620, 
623,   25  Pac.  Rep.   125. 

"'  Santa  Monica  L.  &  M.  Co.  v.  Hege,  119  Cal.  376,  381,  51  Pac.  Rep. 
555;  but,  as  before  stated,  other  lien  claimants  are  interested  in 
knowing  the  facts. 

^^  See  "Nature  of  Labor,"  §§  130  et  seq.,  ante. 


§  396  mechanics'  liens.  344 

fact,  the  work  is  "  to  raise  up,  move  back,  and  repair  "  two 
houses,  and  furnish  material  therefor,  and  the  claim  is  un- 
certain as  to  whether  it  is  a  contract  to  "  erect  "  and  furnish 
materials  for  one  or  two  buildings,  the  claim  is  insufficient.^^^ 
Where  the  claim  of  lien  states  that  the  claimant  "  was  to  do 
the  carpentering-work  on  said  building  or  structure  known 
as  a  quartz-mill,  as  aforesaid,  for  wages,  at  three  dollars  per 
day,  and  said  wages  were  payable  on  demand,"  it  is  a  suffi- 
cient statement,  under  these  facts.^*° 

§  396.  Same.  Dates.  While  it  is  not  thought  to  be 
necessary  to  set  forth  the  date  of  the  contract,"^  where  dates 
between  which  materials  were  furnished  are  stated  in  the 
claim,"^  or  where  the  date  is  mentioned,  but  is  left  uncertain, 
as,  "  on  or  about  the  first  day  of  July,"  the  claimant  cannot 
recover  for  materials  furnished  on  the  2-itli  of  May  of  the 
same  year ;  ^*^  the  general  principle  being,  that,  while  items 
of  an  account  are,  in  general,  not  required,  still  the  claimant 
cannot  recover  for  materials  not  included  in  the  claim  of 
lien.i" 

"»  Eaton  V.  Malatesta,  92  Cal.  75,  28  Pac.  Rep.  54,  disting^uished  in 
Ward  V.  Crane,  118  Cal.  676,  677,  50  Pac.  Rep.  839,  where  the  claim, 
complaint,  evidence,  and  findings  all  showed  the  work  to  be  the 
"erection"  of  a  building,  although  the  work  consisted  in  practi- 
cally  remodeling  the   building. 

See  §  411,  post. 

"0  Corbett  v.  Chambers,  109  Cal.  178,  179,  185,  41  Pac.  Rep.  873  (see 
record);  Castagnetto  v.  Coppertown  M.  &  S.  Co.,  146  Cal.  329,  332,  80 
Pac.  Rep.  74.  Held  sufficient,  where  claim  stated  that  the  labor  was 
performed  by  the  day,  on  a  certain  mine  described,  at  the  agreed  price 
of  $2.75  per  day,  between  August  1  and  September  20,  1901,  and  that 
the  amount  is  justly  due  and  owing. 

1"  See    §  374,    ante. 

1"  Goss  V.  Strelitz,   54   Cal.   640,   644. 

Montana.  Time  of  furnishing  materials,  when  shipped:  See 
McElwen  V.  Montana  P.  &  P.  Co.    (Mont.),  90  Pac.  Rep.   359. 

Oregon.  Contra:  Allen  v.  Elwert,  29  Oreg.  428,  44  Pac.  Rep.  823, 
48   Id.    54. 

"3  See  Santa  Monica  L.  &  M.  Co.  v.  Hege  (Cal.),  48  Pac.  Rep.  69. 
The  opinion  on  rehearing,  however,  did  not  consider  this  point.  See 
s.  c.  119  Cal.  376,  51  Pac.  Rep.  555. 

See  "Uncertainty,"  §411,  post. 

1"  Goss  V.  Strelitz,  54  Cal.  640,  643;  Davles-Hende"rson  L.  Co.  v. 
Gottschalk,   81   Cal.   641,   647,   22   Pac.   Rep.   860. 

Oregon.  But  where  the  claim  contains  a  lumping  charge  of  the 
amount  demanded,  and  there  is  no  means  of  ascertaining  from  the 
claim  itself  the  quantity  and  value  of  non-lienable  claims,  the  lien  is 
defeated:    Harrisburg  L.  Co.  v.  Washburn,   29  Oreg.   150,   44   Pac.   Rep. 


I 


345  CONTENTS   OP    CLAIM    OF    LIEN.  §  397 

§  397.  Same,  "  Time  given."  ^*^  The  expression,  "  time 
given,"  as  used  in  the  provision  of  the  statute  requiring  the 
"  terms,  time  given,  and  conditions  "  of  the  contract  to  be 
stated,  refers  to  the  time  of  payment  as  agreed  on  and  ex- 
pressed in  the  contract  of  the  claimant.  If  no  time  of  pay- 
ment is  stated  in  the  contract,  it  is  presumed  that  no  time 
was  given.^*®  The  law  construes  such  contract  as  requiring 
payment  upon  completion  of  claimant's  contract;  and  no 
time  need  be  stated  in  the  claim  of  lien.^*'^ 

390;  Allen  v.  Elwert,  29  Greg.  428,  44  Pac.  Rep.  823,  48  Id.  54.  See 
Dalles  L.  &  Mfg.  Co.  v.  Wasco  W.  Mfg.  Co.,  3  Greg.  527;  Kezartee  v. 
Marks,  15  Greg.  529,  16  Pac.  Rep.  407;  Williams  v.  Toledo  Coal  Co.,  25 
Greg.  426,   36  Pac.  Rep.   159,  42  Am.  St.  Rep.   799. 

Reason  for  the  rule.  "  For  a  court  cannot  from  oral  evidence 
separate  items  for  which  a  lien  is  given  from  those  for  which  no  lien 
can  be  acquired":  Harrisb.urg  L.  Co.  v.  Washburn,  supra. 

Utah.  Likewise  as  to  statement,  under  §  12,  of  intention  to  per- 
form labor  or  furnish  material:  Morrison  v.  Carey-Lombard  Co.,  9 
Utah   70,   33   Pac.   Rep.   238    (1890). 

"^  See,  generally,  §§  387  et  seq.,  ante. 

Colorado.  "  Even  if  the  debt  had  not  matured,  by  reason  of  credit 
having  been  extended  for  a  specific  time,  this  would  not,  as  is  well 
known,  have  destroyed  the  right  of  the  creditor  to  secure  himself  by 
initiating  a  lien":  Bitter  v.  Mouat  L.  &  I.  Co.,  10  Colo.  App.  307,  343, 
51   Pac.   Rep.   519    (1889). 

AA'a-shington.  See  Hopkins  v.  Jamieson-Dixon  M.  Co.,  11  Wash.  308, 
317,  39  Pac.  Rep.   815. 

i*«  McClain  v.  Hutton,  131  Cal.  132,  137,  63  Pac.  Rep.  182,  622,  61  Id. 
273. 

"'  When  no  time  of  iiayment  Tvas  stated  in  the  contract,  the  law 
construed  the  contract  to  require  payment  upon  the  completion  of 
the  work,  and  tlierefore  the  time  of  payment,  althougli  not  the  date. 
is  fixed:    Bryan  v.  Abbott,  131  Cal.  222,  224,  225,  63  Pac.  Rep.  363. 

"Time  given."  In  reference  to  this  expression,  the  supreme  court 
has  said:  "The  words  of  the  statute,  'time  given,'  in  our  judgment, 
mean  the  time  of  payment  for  the  work  and  labor  performed  and 
materials  furnished,  as  agreed  on  and  expressed  in  the  contract.  As 
said  above,  we  cannot  say  that  the  contract  is  not  accurately  stated; 
that  is,  stated  as  made  and  agreed  on.  If  this  is  so,  no  distinct  time 
was  agreed  on,  but  the  time  of  payment  was  left  to  the  rule  fixed  by 
the  law  on  such  a  state  of  facts.  When  tliis  is  the  case,  no  time  is 
given,  in  contemplation  of  law,  and  the  requirem^ent  that  the  '  time 
given '  must  be  stated  does  not  apply.  If  the  words  '  time  given  ' 
refer  to  the  time  agreed  on  for  the  completion  of  the  contract,  and 
no  period  of  time  for  such  completion  is  fixed  by  the  contract,  but 
such  time  is  allowed  as  tlie  law  gives,  the  same  rule  applies,  and  no 
time  need  be  stated  in  the  claim":  Hills  v.  Ghlig,  63  Cal.  104.  See 
Jewell  v.  McKay,  82  Cal.  144,  152,  23  Pac.  Rep.  139;  California  P.  W. 
V.  Blue  Tent  Consol.  H.  G.  M.  (Cal.),  22  Pac.  Rep.  391.  But  see  Hooper 
V.  Flood,   54  Cal.   218,   221. 

Statement  of  claim  is  suflieient  where  the  statement  is  that  tlie 
price  of  all  tlie  materials  furnished  shall  be  due  on  the  delivery  of 
the  same:    Cohn   v.   Wright,   89  Cal.   86,  89,  26  Pac.   Rep.  643. 


§  398  mechanics'  liens.  346 

Partial  payments.  "Where  the  claim  of  lien  states  that  the 
amount  of  partial  payments  was  not  fixed  in  the  contract,  the 
claimant  could  not  insist,  under  such  contract,  upon  any- 
specified  sums  being  paid  before  the  final  payment  became 
due  after  the  completion  of  the  contract,  when  all  became 
due;  and  such  statement  of  claim  seems  to  be  a  substantial 
compliance  with  the  statute. ^*^ 

§  398.  Same.  "  Cash."  AYhere  the  claim  states  "  that 
the  terms,  time  given,  and  conditions  of  said  contract  are 
and  were  cash,"  the  court  said  that  the  word  "  cash,"  in  this 
connection,  means  nothing;  that  its  common  meaning  is 
"  money,"  and  sometimes  "  ready  money"  ;  and  that  the  word 
"  credit,"  similarly  placed,  would  throw  as  much  light  on  the 
subject.^*"  But  where  the  claim  states :  "  The  following  is  a 
statement  of  the  terms,  time  given,  and  conditions  of  said 
contract,  to  wit :  50  M.  1%  P.  Laths,  one  hundred  and 
seventy-five  dollars,  [stating  each  item  of  the  claim]  ;  terms 
cash  on  completion  of  contract,"  —  the  time  and  manner  of 
payment  are  expressed,  and  it  cannot  be  presumed,  in  the 
absence  of  allegation  and  proof,  that  this  did  not  include  all 
the  conditions  of  the  contract.^^°  Likewise,  it  is  sufficient 
where  the  claim  contains  the  statement,  "  that  the  terms  of 
payment  for  said  labor  were  cash  as  soon  as  said  labor  was 
performed  " ;  ^^^  or,  "  cash  upon  demand,  in  gold  coin  of  the 
United  States  " ;  ^^-  or,  an  agreement  to  pay  the  market  value 
at  the  date  of  delivery,  "  in  cash."  ^^^ 

i«  San  Diego  L.  Co.  v.  W^oolredge,  90  Cal.  574.  578,  27  Pac.  Rep.  431, 

432. 

i«  Hooper  v.  Flood,  54  Cal.  219,  221;  but  the  opinion  does  not  show 
whether  the  word  "cash"  was  actually  used  in  the  contract,  or 
whether  there  was  any  time  actually  given.  See  also  Golden  Gate  L. 
Co.  V.  Sahrbacher,  105  Cal.  114,  118,  38  Pac.  Rep.  635  (transcript  and 
briefs). 

15*  Kelly  V.   Plover,    103   Cal.    35,   36,    36   Pac.   Rep.    1020. 

151  Tredinnick  v.  Red  Cloud  M.  Co.,  72  Cal.  78,  80,  13  Pac.  Rep.  152. 
See  Kelly  v.  Plover,  103  Cal.  35,  36,  36  Pac.  Rep.  1020. 

1=2  Blackman  v.  Marsicano,  61  Cal.  638,  640,  aistin^uished  from 
Hooper  v.  Flood,  54  Cal.  219,  221:  and  see  Kelly  v.  Plover,  103  Cal.  35, 
36  Pac.  Rep.  1020. 

>"^  Russ  L.  Co.  v.  Garrettson,  87  Cal.  589,  595,  25  Pac.  Rep.  747  (the 
statement  also  showed  the  whole  value  of  the  materials  furnished 
and  the  balance  unpaid)." 


3-i7  CONTEXTS   OF    CLAIM    OF    LiEN.  §  399 

§  399.  Description  of  property.  In  general.''*  The  code 
provision/^"  like  the  meehanic"s-lien  statutes  generally, 
provides  that  the  claim  of  lien  must  contain  a  "  description 
of  the  property  to  be  charged  with  the  lien,  sufficient  for 
identification."  Where  the  claim  contains  no  description 
of  the  property  upon  which  a  lien  is  sought  to  be  foreclosed, 
although  the  intention  was  manifest,  the  omission  is  fatal;  ^^* 

1^  GeneraUy,  see  Georges  v.  Kessler,  131  Cal.  183,  63  Pac.  Rep.  466; 
Union  L.  Co.  v.  Simon  (Cal.  App.,  March  13,  1906),  89  Pac.  Rep.  1077, 
1078. 

As  to  description  of  property  in  claim,  see  note  11  L.  R.  A,  740. 

Oklaiionia.  See  El  Reno  E.  L.  &  T.  Co.  v.  Jennison,  5  Okl.  759,  50 
Pac.  Rep.   144. 

Utali.     See  Culmer  v.  Clift,  14  Utah  286,  47  Pac.  Rep.  85. 

155   Kerr's  Cyc.  Code  Civ.  Proc,   S  1187. 

'S"  Penrose  v.  Calkins,   77  Cal.   396,   19   Pac.   Rep.   641. 

Under  statute  requiring;  ''correct"  description  (1855),  the  follow- 
ing was  held  not  sufficient:  "A  dwelling-house  lately  erected  by  me 
for    J.    W.    Conner,    situated    on    Bryant    Street,    between    Second    and 

Third   streets,    in   the   city    of   San   Francisco,    on   lot  ."      "This   is 

not  such  a  description,"  said  the  court,  "as  is  contemplated  by  the 
statute;  there  are  a  number  of  lots  on  Bryant,  between  Second  and 
Third  streets,  to  any  one  of  which  it  would  apply,  as  well  as  the  one 
in  question.  The  fact  that  Conner  oWned  no  other  dwelling  on  Bryant 
Street,  we  think  immaterial;  besides,  it  does  not  appear  from  plain- 
tiff's notice,  nor  is  it  shown,  that  Payson,  who  is  an  innocent  pur- 
chaser for  a  valuable  consideration,  was  aware  of  it":  Montrose  v. 
Conner,  8  Cal.  344,   347.     See  Tibbetts  v.  Moore,  23  Cal.  208,   213. 

And  also  where  the  owner  refers  to  any  real  estate  in  the  claim  of 
lien,  as  follows:  "That  certain  lot  and  parcel  of  land  situated  in  said 
county  of  Nevada,  state  of  California,  and  sought  to  be  charged  with 
this  lien,  as  follows,  to  wit,"  and  this  was  not  followed  by  a  particu- 
lar description,  it  was  held  to  be  absolutely  no  description  of  the 
property:    Penrose  v.  Calkins,  77  Cal.  396,  19  Pac.  Rep.  641. 

Colorado.  And  so  where  no  state,  county,  or  city  was  mentioned 
("plat  2,  in  block  13,  of  Harman's  Subdivision"):  Sayre-Newton  L. 
Co.  v.  Park,  4  Colo.  App.  482,  36  Pac.  Rep.  445.  See  Anderson  v.  Bing- 
ham,  1  Colo.  App.   222,   28   Pac.  Rep.   145. 

Montana.  A  description  in  the  notice  of  lien  cannot  be  supplied  by 
oral  evidence,  but  an  ambiguity  may  be  explained  and  the  premises 
identified.  Hence  a  description  of  lot  14  cannot  sustain  a  lien  for 
material  furnished  for  the  erection  of  a  building  on  lot  13,  although 
the  particular  description  is  preceded  by  a  reference  to  "  that  certain 
frame  building  and  outhouses  erected "  upon  the  same,  and  it  is 
alleged  that  lot  13  is  the  only  one  upon  which  defendant  had  build- 
ings. Some  stress  was  laid  on  the  custom  of  describing  land  in  cities 
b.\-  lots,  according  to  some  recorded  plat:  Goodrich  L.  Co.  v.  Davie, 
13  Mont.   76,   32   Pac.   Rep.   282    (under  Comp.   Stats.,   §1371). 

Oregon.     Morehouse  v.  Collins,   23   Oreg.   138,   31  Pac.   Rep.   295. 

W'a.shington.  See  Hopkins  v.  Jamieson-Dixon  M.  Co.,  11  Wash.  308, 
316;  Warren  v.  Quade,  3  Wash.  750,  29  Pac.  Rep.  827  (Gen.  Stats., 
$  1667);  Tacoma  L.  &  M.  Co.  v.  Kennedy,  4  Wash.  305,  30  Pac.  Rep.  79; 
Mount  Tacoma  M.  Co.  v.  Cultum,  5  Wash.  294;  Young  v.  Howell,  5 
Wash.   239,  31  Pac.  Rep.  629. 


§399 


MECHANICS     LIENS. 


348 


but  the  courts  have  been  very  liberal  in  upholding  imperfect 
descriptions/^^ 

Before  the  enactment  of  section  twelve  hundred  and 
three  a,^^^  the  statute  did  not  even  require  a  technical 
description,  but  only  one  "  sufficient  for  identification."  ^^° 

15'  Penrose  v.  Calkins,  77  Cal.  396,  19  Pac.  Rep.  641. 

Colorado.  Gary  H.  Co.  v.  McCarty,  10  Colo.  App.  200,  50  Pac.  Rep. 
744. 

13S  Kerr's  Cyc.  Code  Civ.  Proc,   §  l::o3a. 

i°»  Brunner  v.  Marks,  98  Cal.  374,  375,  377,  33  Pac.  Rep.  265;  Curnow 
V.  Happy  Valley  B.  G.  &  H.  Co.,  68  Cal.  262,  266,  9  Pac.  Rep.  149; 
Tredinnick  v.  Red  Cloud  Consol.  M.  Co.,  72  Cal.  78,  81,  13  Pac.  Rep. 
152;  Fernandez  v.  Burleson,  110  Cal.  164,  167,  42  Pac.  Rep.  566,  52  Am. 
St.  Rep.  75.  See  Union  L.  Co.  v.  Simon  (Cal.  App.,  March  13,  1906),  89 
Pac.  Rep.  1077,  1079.  The  statement  in  this  case,  that  "  what  the  stat- 
ute has  made  essential  to  the  creation  of  the  lien  must  be  fully  and 
correctly  stated,"  is  subject  to  criticism,  so  far  as  the  description  is 
concerned,  since  the  statute  expressly  states  that  a  description  suffi- 
cient for  identification  only  is  required:  See  s.  c.  (Cal.  Sup.)  89  Pac. 
Rep.  1081. 

»<  Correct  "  descriiition.  Under  some  early  statutes  the  claim  was 
required  to  contain  a  "correct  description"  of  the  property,  and  the 
decisions  upholding  descriptions  under  this  rule  would  undoubtedly 
be  applicable  under  our  present  statute  requiring  only  a  description 
"  sufficient  for  identification."  The  rule  was  early  stated,  that  a 
description  is  sufficient  if  the  land  is  described  with  convenient  cer- 
tainty: Hotaling  v.  Cronise,  2  Cal.  60,  64  (in  this  case  the  claimant 
described  the  property  as  "the  wharf  situated  on  Battery  Street, 
between  Pacific  and  Jackson  streets,  in  San  Francisco,"  and  was  held 
sufficient). 

Under  an  early  statute,  which  required  a  "  correct "  description  of 
the  property,  in  Gordon  v.  South  Fork  C.  Co.,  1  McAl.  C.  C.  513,  10  Fed. 
Cas.  817,  it  is  said:  "What  is  meant  by  a  correct  description?  Does 
it  mean  a  description  by  metes  and  bounds,  and  require  the  particu- 
larity demanded  in  a  deed?  The  word  'correct'  is  not  a  technical  one. 
Its  obvious  meaning,  under  the  statute,  is,  such  a  description  as 
identified  the  individual  object  intended  to  be  designated.  If  there 
was  no  other  object  in  existence  at  the  time  which  answered  that 
description,  the  rule,  De  non  apparentibus,  etc.,  must  apply,  and  the 
description  must  be  deemed  sufficiently  correct.  Such  object  is  accom- 
plished in  this  case.  .  .  .  The  subject  on  which  the  lien  is  sought  are 
'  the  works  known  as  the  South  .Fork  Canal,  near  Placerville,  in 
Eldorado  County.'"  And  if  an  act  uses  the  word  "correct"  descrip- 
tion or  not,  it  seems  to  make  no  difference. 

Colorado.  Sayre-Newton  L.  Co.  v.  Park,  4  Colo.  App.  482,  36  Pac. 
Rep.   445. 

Montana.  Western  I.  W.  v.  Montana  P.  &  P.  Co.,  30  Mont.  550,  77 
Pac.  Rep.  413,  416. 

Under  the  statute  in  force  it  was  held  not  necessary  to  describe 
the  "property,"  but  the  land:  Whiteside  v.  Lebcher,  7  Mont.  473,  17 
Pac.  Rep.  548. 

New  Mexico.  Ford  v.  Springer  Land  Assoc,  8  N.  M.  37,  41  Pac. 
Rep.  541  (legal  subdivisions  according  to  United  States  surveys,  etc., 
sufficient). 

Oregon.  Where  the  building  is  described  sufficiently  for  identifi- 
cation, such  building  will  be  bound,  although  the  land  may  not  be 
described:    Kezartee  v.  Marks,  15  Oreg.  529,  536,  16  Pac.  Rep.  407. 


349  CONTENTS   OF    CLAIM    OF    LIEN.  §§400.401 

§  400.  Same.  Bona  fide  purchasers.  The  California 
courts,  with  some  hesitation,  announced  the  doctrine  that 
the  description  of  the  property  must  be  sufficient  not  only 
as  to  the  owner,  but  also  as  to  bona  fide  purchasers  and  all 
other  persons  who  might  be  interested;  in  other  words,  the 
description  must  be  sufficient  in  itself  as  notice  to  any  and 
all  parties  likely  to  become  interested  in  the  property.^**" 

Statutory  provision.  To  render  the  rule  definite  and 
create  an  exception  where  the  rights  of  bona  fide  purchasers 
intervene,  a  new  section,  added  to  the  California  Code  of 
Civil  Procedure  in  1907,^^^  provides :  "  No  mistakes  or  errors 
...  in  the  description  of  the  property  against  which  the 
claim  is  filed,  shall  invalidate  the  lien,  unless  .  .  .  the  court 
shall  find  that  the  innocent  third  party,  without  notice, 
direct  or  constructive,  has  since  the  claim  was  filed,  become 
the  bona  fide  owner  of  the  property  liened  upon,  and  that 
the  notice  of  claim  was  so  deficient  that  it  did  not  put  the 
party  upon  further  inquiry  in  any  manner."  ^''- 

§  401.  Same.  Object  of  provision.  The  requirement  of 
the  statute  must  be  looked  at  in  the  light  of  its  purpose,  and 
the  object  of  the  description  is,  of  course,  to  affect  with 
notice  the  owner,  creditors,  purchasers,  and  other  lien  claim- 
ants dealing  with  the  land  or  property  affected  by  the  lien.^^' 

AVashington.  Griffith  v.  MaxweU,  20  Wash.  403,  55  Pac.  Rep.  571; 
McHugh  V.  Slack,  11  Wash.  370,  373,  39  Pac.  Rep.  674;  Whittier  v. 
Stetson  &  P.  M.  Co.,  6  Wash.  190,  192,  33  Pac.  Rep.  393,  36  Am.  St.  Rep. 
149  (Gen.  Stats.,  §  1667).  See  CoUins  v.  Snoke,  9  Wash.  566,  570,  38 
Pac.   Rep.   161. 

""  In  Union  L.  Co.  v.  Simon  (Cal.  Sup.),  the  supreme  court,  on 
hearing  in  bank,  from  s.  c.  (Cal.  App.,  March  13,  1906)  89  Pac.  Rep. 
1077,  did  not  agree  to  an  intimation  contained  in  the  opinion  of  the 
lower  court,  that  a  misdescription  of  one  boundary,  sufficient  as  to 
the  owner,  may  be  void  as  to  third  persons  without  knowledge  of  the 
ex.trinsic  facts,  but  held  that  it  must  be  good  as  to  all  persons  (Hen- 
shaw  and  McFarland,  JJ..  dissenting). 

"■'  Kerr'.s  Cyc.  Code  Civ.  Proc,  §  1203a,  Kerr's  Stata.  and  Anidts. 
190G-07,  p.   482. 

'"-  See  "Uncertainty  and  Error,"  S§  411,  412  et  seq.,  post. 

'«'  See  Fernandez  v.  Burleson,  110  Cal.  164,  167,  42  Pac.  Rep.  566,  52 
Am.  St.  Rep.  75;  Montrose  v.  Conner,  8  Cal.  344,  347.  See  Union  L.  Co. 
V.   Simon    (Cal.   App.,   March    13,   1906),   89   Pac.  Rep.   1077,    1079. 

Colorado.  Gary  H.  Co.  v.  McCarty,  10  Colo.  App.  200,  50  Pac.  Rep. 
744. 

Montana.  The  purpose  of  filing  a  claim  of  lien  is  to  notify  all 
parties    dealing    with    the    property    that    a    lien    is    claimed    upon    it. 


§  402  mechanics'  liens.  350 

§  402.  Same.  General  rule.  As  to  what  constitutes  a 
description  "  sufficient  for  identification,"  the  California  su- 
preme court  has  said:  "  The  claimant  is  not  required,  before 
filing  his  claim  of  lien,  to  make  an  accurate  survey  of  the  lot 
upon  which  the  building  stands,  at  the  risk  of  losing  his  lien 
if  he  makes  a  slight  mistake  in  giving  its  boundaries,  nor  is 
he  even  required  to  give  the  boundaries  of  the  lot.  .  .  .  '  The 
best  rule  to  be  adopted  is,  that  if  there  appear  enough  in  the 
description  to  enable  a  party  familiar  with  the  locality  to 
identify  the  premises  intended  to  be  described  with  reason- 
able certainty,  to  the  exclusion  of  others,  it  will  be  sufficient. 
There  is  a  great  reluctance  to  set  aside  a  mechanic's  claim 
merely  for  loose  description,  as  the  acts  generally  contem- 
plate that  the  claimants  should  prepare  their  own  papers, 
and  it  is  not  necessary  that  the  description  should  be  either 
full  or  precise."  ^^*    Hence  the  same  fullness  and  precision  of 

When  tlie  building  is  identified,  this  notice  is  given.  AH  persons  are 
charged  with  the  knowledge  that  the  statute  gives  a  lien  upon  the 
building,  and  then  extends  it  to  a  certain  area  of  the  land  upon  which 
the  building  is  situated.  If  the  lien  claimant  were  required  to 
describe  specifically  the  land  in  his  claim,  he  would  often,  without 
any  fault  on  his  part,  be  unable  to  do  so.  To  ascertain  the  exact 
description,  if  outside  the  limits  of  a  city,  would  in  many  instances 
require  a  survey,  which  the  owner  might  object  to  and  prevent. 
Again,  such  a  requirement,  where  the  structure  is  outside  the  limits 
of  a  city,  would  give  a  right  to  such  claimant  to  select  the  land  in 
any  shape  he  desired,  and  the  query  would  then  arise,  whether  his 
selection  would  not  be  binding  on  the  court  and  all  the  parties  to  the 
suit.  This  might  render  the  statute  extremely  oppressive  on  the 
land-owner.  If  there  was  more  than  one  claimant,  no  two  selections 
might  coincide.  If  the  tract  of  land  described  is  of  greater  area  than 
the  statute  allows,  but  is  suflScient  for  identification,  the  amount  and 
specific  description  against  which  the  lien  should  be  adjudged  is  a 
matter  to  be  tried  and  determined  by  the  court,  which  may  appoint 
a  surveyor,  if  necessary,  for  that  purpose:  W^estern  I.  W.  v.  Montana 
P.  &  P.  Co.,  30  Mont.  550,  77  Pac.  Rep.  413,  416. 

I"  Willamette  S.  M.  Co.  v.  Kremer,  94  Cal.  205,  209,  29  Pac.  Rep.  633. 
See  Fernandez  v.  Burleson,  110  Cal.  164,  167,  42  Pac.  Rep.  566,  52  Am. 
St.   Rep.   75. 

Colorado.  Martin  v.  Simmons,  11  Colo.  411,  18  Pac.  Rep.  535;  Cary 
H.  Co.  v.  McCarty,  10  Colo.  App.  200,  50  Pac.  Rep.  744  ("wide  latitude  is 
allowed  in  the  application  of  this  rule"). 

Montana.  Any  description  which  will  enable  one  familiar  with  the 
locality  to  identify  the  property  upon  which  the  lien  is  claimed  is 
sufficient:  Western  I.  W.  v.  Montana  P.  &  P.  Co.,  30  Mont.  550,  77 
Pac.  Rep.  413,  416. 

Xew  Mexico.  See  Ford  v.  Springer  L.  Assoc,  8  N.  M.  37,  41  Pac. 
Rep.   541. 

Oklahoma.     Blanshard  v.  Schwartz,   7  Okl.  23,  54  Pac.  Rep.  305. 


351  CONTEXTS   OF    CLAIM    OF    LIEN.  §  403 

description  is  not  required  in  the  claim  as  in  the  case  of  a 
conveyance  or  a  judgment. ^*^" 

Question  of  fact.  As  a  general  rule,  whether  the  descrip- 
tion is  sufHcient/*''^  or  "  sufficient  for  identification,"  is  a  ques- 
tion of  faet."^ 

§  403.  Same.  Special  applications.  False  calls.  A  false 
call  or  an  inaccuracy  in  the  description  of  the  property  will 
not  defeat  a  lien,  if  the  description  is  not  in  itself  misleading, 
nor  defective  in  some  essential  particular. ^^* 

Description  sufficient  when  it  enables  one  familiar  with  the  locality 
to  identify  with  reasonable  certainty  the  premises  intended  to  be 
described:  Ferguson  v.  Stephenson-Brown  L.  Co.,  14  Okl.  148,  77  Pac. 
Rep.   lb;4. 

Oregon.  Harrisburg  L.  Co.  v.  Washburn,  29  Greg.  150,  44  Pac.  Rep. 
390;  Kezartee  v.  Marks,   15  Greg.   529,   16   Pac.  Rep.   407. 

Wasliing-ton.  Griffith  V.  Maxwell,  20  Wash.  403,  55  Pac.  Rep.  571. 
See  McHugh  v.  Slack,  11  Wash.  370,  373,  39  Pac.  Rep.  674;  Collins  v. 
Snoke,  9  Wash.  566,  571,  38  Pac.  Rep.  161;  Whittier  v.  Stetson  &  P.  M. 
Co.,  6  Wash.  190,  194,  33  Pac.  Rep.  393,  36  Am.  St.  Rep.  149;  Cowie  v. 
Ahrenstedt,   1   Wash.   416,   420,   25   Pac.   Rep.   458. 

i«  Union  L.  Co.  v.  Simon  (Cal.  App.,  March  13,  1906),  89  Pac.  Rep. 
1077. 

Oregon.  Contra:  Runey  v.  Rea,  7  Greg.  130  (1874),  requiring  as 
definite  description  as  in  a  mortgage  or  deed. 

»««  Willamette  S.  M.  Co.  v.  Kremer,  94  Cal.  205,  209,  29  Pac.  Rep.  633; 
Union  L.  Co.  v.  Simon  (Cal.  App.,  March  13,  1906),  89  Pac.  Rep.  1077, 
1079. 

'"  Corbett  v.  Chambers,  109  Cal.  178,  185,  41  Pac.  Rep.  873  (see 
"  record  "). 

"»  Union  L.  Co.  v.  Simon  (Cal.  App.,  March  13,  1906),  89  Pac.  Rep. 
1077.  See  Nystrom  v.  London  &  N.  W.  Am.  Mortg.  Co.,  47  Minn.  31,  94 
N.   W.   Rep.   394. 

Thus  where  the  description  in  the  claim  is  "'Lot  6,  in  block  28,  of 
the  Huber  tract,'  in  Los  Angeles,  .  .  .  said  lot  was  '  situate  at  the 
southwest  corner  of  Hope  and  Eighth  streets  in  said  city,' "  the 
description  is  sufficient,  although  that  lot  and  block  are  on  the  north- 
east corner  of  the  streets  and  part  of  the  building  is  on  lot  7,  it  not 
appearing  that  any  other  building  than  the  one  on  the  northeast 
corner  had  been  erected  by  the  owner  at  the  intersection  of  such 
streets.  The  description  of  the  block  identified  the  location  of  the 
lot,  and  the  call  for  the  "southwest"  corner  of  the  streets  inay  be 
rejected  as  a  false  call  in  a  deed  of  conveyance;  the  greater  portion 
of  the  building  being  in  fact  upon  lot  6,  and  the  building  intended 
was  thus  sufficiently  identified,  notwithstanding  it  e.xtended  a  sliort 
distance  beyond  the  line  of  division  between  the  two  lots.  If  there 
had  been  a  building  upon  each  lot,  and  the  plaintiff  had  stated  that 
the  building  upon  which  he  claims  a  lien  was  upon  lot  6,  he  might 
have  been  precluded  from  enforcing  the  lien  against  the  one  upon 
lot  7,  but  in  the  absence  of  any  ambiguity  or  uncertainty,  the  state- 
ment must  be  held  sufficient  whenever  it  can  be  determined  from  it 
what  building  was  intended:  Willamette  S.  M.  Co.  v.  Kremer,  94 
Cal.   205,   209,   29   Pac.  Rep.   633. 


§  403  mechanics'  liens.  352 

Particular  description  repugnant  to  general  description.  A 

statement  that  materials  were  used  in  the  construction  "  of 
that  certain  railway  known  as  and  called  the  Sierra  Valleys 
and  Mohawk  Railway  "  (Mohawk  Valley,  in  Plumas  County, 
being  its  proposed  westerly  terminus),  includes  the  entire 
railway,  by  general  description.  A  further  particular  de- 
scription "  to  its  present  westerly  terminus,"  particularly 
described,  which  was  short  of  its  proposed  westerly  terminus, 
is  not  inconsistent  with  the  general  description,  and  the 
claim  includes  the  incompleted  portion,  it  being  a  fair  infer- 
ence that  the  further  particulars  were  intended  and  could  be 
regarded  merely  as  for  identification  of  the  road  as  an  en- 
tirety, and  not  as  exclusive  of  the  westerly  extension,  then 
incomplete ;  although  such  extension  was  not  within  the 
descriptive  particulars,  yet  it  was  not  excluded  by  them,  and 
was  within  the  descriptive  designation,  "  Sierra  Valleys  and 
Mohawk  Railway."  ^""^ 

Washington.  Description  of  property  in  notice  of  claim  of  me- 
chanic's lien,  insufficient  when:  Whittier  v.  Stetson  &  P.  M.  Co.,  6 
V^ash.  190,  33  Pac.  Rep.  393,  36  Am.  St.  Rep.  149. 

As  to  sullieiency  of  description  of  property  in  notice  of  claim  o£ 
nieclianic's  lien,  see  note  36  Am.  St.  Rep.  156. 

>™  Bring-ham  v.   Knox,   127  Cal.   40,   43,   .'59  Pac.  Rep.   198. 

As  to  meclianic's  lien  on  railroad,  see  note  7  Am.  &  Eng.  Ann.  Cas. 
469-472. 

Where  the  claim  states  that  it  is  the  intention  of  the  claimant 
"  to  hold  and  claim  a  lien  .  .  .  upon  that  certain  mining  claim  situ- 
ated in  the  Virginia  Bar  mining  district,  county  of  Siskiyou,  state  of 
California,  particularly  described  as  follows  [giving  a  specific  descrip- 
tion by  monuments,  metes,  and  bounds],  containing  twelve  acres, 
more  or  less,  .  .  .  with  all  improvements,  including  wheels,  pumps, 
and  all  mining  facilities  and  appurtenances  situated  thereon,"  and 
Burleson  and  Parsley  are  mentioned  as  the  owners  thereof,  and 
where  "the  description  by  monuments,  metes,  and  bounds,  thus 
stated,  does  not  apply  in  any  part  to  the  'Bare  Bar'  property,  where 
plaintiffs  did  their  work,  but  does  apply  with  entire  accuracy  to  an 
adjoining  mining  claim  known  as  the  '  Otto  Bar,'  "  in  which  B.  and  P. 
had  with  other  persons  some  interest,  but  which  was  not  worked  at 
all  at  the  time  the  plaintiffs  did  tneir  work,  and  there  were  no  pumps, 
etc.,  on  Otto  Bar,  and  mines  in  the  neighborhood  were  "generally 
known  by  the  names  of  the  parties  running  them,"  and  tlie  Bare  Bar 
claim  was  commonly  called  the  Burleson  and  Parsley  claim,  and 
mining  claims  were  somewhat  numerous  in  the  neighborhood,  but 
Burleson  and  Parsley  worked  no  other  claim,  it  was  said  by  the 
court:  "  There  is  no  warrant  in  the  law,  or  in  the  abstract  equity  of 
the  case,  for  rejecting  the  boundaries  by  which  the  notice  of  lien 
states  that  the  property -is  'particularly  described.'  One  of  the  most 
important  requirements  of  the  statute  governing  the  creation  of  such 
liens  is  that  the  notice  shall  contain  a  description  of  the  property  to 


353  CONTENTS   OF    CLAIM    OP   LIEN  §  403 

Construction  of  description.  A  description  will  be  so  con- 
strued as  to  reject  a  recital  repugnant  to  the  rest  of  the 
claim,  when  it  contains  a  reference  to  one  building  on  one 
lot,  and  in  fact  to  the  building  in  question. ^^° 

be  charged,  sufficient  for  identification:  Code  Civ.  Proc,  §1187. 
Wittiout  sucli  description,  tlie  notice  would  in  some  instances  be  of 
no  value  to  the  owner,  and  could  rarely  be  of  any  use  to  creditors, 
purchasers,  or  other  lien  claimants  dealing-  with  the  land.  If  this 
were  a  case  of  mistake  as  to  some  incident  of  the  description,  the 
mistaken  circumstance,  like  a  false  call  in  a  deed,  would  be  rejected: 
Willamette  S.  M.  Co.  v.  Kremer,  94  Cal.  205,  209,  29  Pac.  Rep.  633;  but, 
on  the  contrary,  the  error  is  of  the  essence  of  the  description.  To 
reject  the  particular  description,  and  rely  on  the  adventitious  circum- 
stances which  accompany  it,  would  be  to  invert  the  maxim  that  the 
incident  follows  tlie  principal,  and  not  the  principal  the  incident: 
Civ.  Code,  §  3540;  the  notice  of  lien  is  not  an  instrument  susceptible 
of  reformation:  Goss  v.  Strelitz,  54  Cal.  640;  therefore  the  monuments 
and  lines  by  which  the  property  is  said  in  the  notice  to  be  'particu- 
larly described  '  cannot  be  expunged  from  the  notice,  but  must  be  read 
as  part  of  it;  so  read,  it  is  misleading-  in  a  particular  where  it  should 
be  substantially  true:  Wagner  v.  Hansen,  103  Cal.  104,  107,  37  Pac. 
Rep.  195.  Secondly,  were  the  particular  description  omitted,  and  the 
other  circumstances  stated  in  the  notice  alone  consulted,  we  do  not 
think  that  a  person  familiar  with  the  locality  merely  could  thereby 
identify  the  premises  with  reasonable  certainty,  to  the  exclusion  of 
others;  he  would  also  need  to  know  that  the  claimant  worked  on  the 
premises,  and  when  he  worked  there,  —  knowledge  of  which  matters 
cannot  be  implied  from  mere  knowledge  of  the  locality.  Besides, 
the  statute  requires  that  the  notice  itself  m-ust  describe  the  property 
on  which  the  work  was  done:  Code  Civ.  Proc,  §§  1183,  1187.  A  notice 
that  the  property  to  be  charged  is  the  property  where  claimant 
worked  does  not  take  the  first  step  toward  compliance  with  the 
statute.  Nothing  then  remains  except  the  reference  to  pumps,  wheels, 
and  mining  facilities,  and  to  the  names  of  the  owners;  it  is  shown 
aflSrmatively  that  the  defendants  claimed  and  were  reputed  to  own  an 
interest  in  the  'Otto  Bar'  mine;  and  the  reference  to  the  wheels. 
pumps,  etc.,  is  —  on  our  present  assumption — -to  them  as  situate 
upon  unascertained  land.  On  these  facts,  at  the  very  most,  one  might 
suspect  that  the  '  Bare  Bar  '  mine  was  intended,  but  that  he  could 
Identify  it  with  reasonable  certainty,  to  the  exclusion  of  other  prem- 
ises, is  incredible":  Fernandez  v.  Burleson,  110  Cal.  164,  167,  168,  42 
Pac.  Rep.  566,  52  Am.  St.  Rep.   75. 

»'»  McClaln  v.  Hutton,  131  Cal.  132,  138,  63  Pac.  Rep.  182,  622,  61  Id. 
273   (reference  to  an  additional  piece). 

Cbloi-iulo.  Where  the  land  was  described  as  being  in  "  Highland 
Subdivision,"  instead  of  "Highland,  in  the  town  of  Highland,"  held 
sufficient,  so  far  as  the  owner  was  concerned:  Martin  v.  Simmons,  11 
Colo.  411,  18  Pac.  Rep.  535. 

AVsLohin^on.  If,  by  rejecting  what  is  false  in  the  description,  any- 
thing remains  to  identify  the  property  attempted  to  be  described,  the 
description  is  sufficient,  under  the  statute.  Thus  where  the  descrip- 
tion was,  "That  certain  two-story  brick  building,  situated  on  lots 
numbered  14,  15,  16,  and  17,  in  block  670,  of  the  Everett  Land  Com- 
pany's Addition  to  the  town  of  Everett,  Snohomi.sh  County,  Wash- 
ington, which  building  is  known  as  the  Slack  Building,  and  fronts  on 
Hewitt  Avenue,  in  said  city,  and  is  about  120  feet  front,  and  extend- 
Mech.  Liens  —  23 


§  404  mechanics'  liens.  354 

§  404.  Same.  Property  identified  by  name  or  exclusive 
character.  Where  the  property  is  generally  known  and  des- 
ignated by  a  definite  name,  or  is  monnmeutal  in  character, 
and  easily  distinguishable  from  others  of  like  kind,  and  not 
to  be  confounded  with  others  in  the  same  place,  in  accord- 
ance with  the  rules  set  forth  in  the  preceding  sections,  an 
imperfect  description  by  metes  and  bounds,  or  by  monu- 
ments, is  generally  upheld  by  the  courts  as  being  sufficient 
for  identification.^''^    And  upon  the  theory  that  the  building 

ing  back  from  said  avenue  80  feet  in  depth,"  it  is  sufficient  for  the 
purposes  of  identification,  although  not  located  in  such  addition  to  the 
city,  when  there  is  but  one  such  numbered  block  and  but  one  such 
named  street  in  Everett,  neither  of  which  appear  upon  the  plat  of 
land  of  the  company's  addition,  and  there  is  but  one  such  building, 
and  that  is  located  in  Hewitt  Avenue,  in  block  670  of  the  original 
plat  of  Everett:    McHugh  v.  Slack,   11  Wash.  370.  39  Pac.  Rep.  674. 

"*  Mines.  Thus  where  the  description  is,  "  That  certain  mine 
commonly  called  the  Red  Cloud  Mine,  situated  in  Bodie  mining  dis- 
trict, Bodie  township,  in  Mono  County,"  and  it  appears  from  the  evi- 
dence that  the  mine  was  well  known  and  commonly  spoken  of  as  the 
Red  Cloud  Mine."  it  is  sufficient,  the  word  "mine"  meaning  the 
whole  claim  or  body  of  mining-ground:  Tredinnick  v.  Red  Cloud 
Consol.  M.  Co.,  72  Cal.  78,  81,  13  Pac.  Rep.  152.  In  this  case  there  was 
a  description  by  courses  and  distances,  which  rendered  it  impossible 
to  trace  all  the  exterior  lines  of  the  land;  but  some  monuments  were 
stated  which  would  control  the  distances;  and  it  was  held  that  the 
description  by  name  was  svifflcient  for  identification.  There  was  no 
evidence  that  there  was  any  other  mine  by  that  name. 

See  "Object,"   §§182  et  seq.,  ante. 

The  same  is  true  where  the  description  is  "  a  quartz-mill,  being  at 
or  near  the  town  of  Scottsville,  in  Amador  County,  known  as  Moore's 
new  quartz-mill."  where  there  is  no  evidence  that  there  was  any 
other  quartz-mill  at  the  place  so  designated,  so  as  to  render  it  uncer- 
tain which  was  intended:  Tibbetts  v.  Moore,  23  Cal.  208,  213  (Stats. 
1856,  as  amended:  decided  in  1863).  See  Montrose  v,  Conner,  8  Cal. 
344,   347    (1855). 

Where  the  claim  does  not  state  that  the  labor  was  performed  "  in 
a  mining  claim,"  but  on  "  that  certain  copper  mine,"  etc.,  and  the 
charging  clause  claimed  a  miner's  lien  on  "  said  mining  claim."  it 
was  held  sufficient:  Castagnetto  v.  Coppertown  M.  &  S.  Co.,  146  Cal. 
329.  333,  80  Pac.  Rep.  74  (before  amendment  of  1903),  Kerr's  Cyc.  Code 
Civ.    Proc,    §  1183. 

Where  the  land  around  a  mill  was  described  in  the  claim,  "with 
such  convenient  space  of  land  around  the  same  as  may  be  required 
for  the  convenient  use  and  occupation,"  it  was  held  sufficient:  Tib- 
betts v.  Moore,  23  Cal.  208,  213  (material  furnished  in  1860;  decided  in 
1863).  See  Union  L.  Co.  v.  Simon  (Cal.  App.,  March  13,  1906),  89  Pac. 
Rep.  1077,  1079. 

Idnho.  A  claim  describing  the  property  as  the  "  Salem  Bar  Mines," 
with  a  description  of  the  location  of  said  mines,  consisting  of  a  group 
of  mines,  known  by  said  name,  and  owned  by  the  same  person,  is 
sufficient:  Phillips  v.  Salmon  R.  M.  &  D..Co.,  9  Idaho  149,  72  Pac.  Rep. 
886. 

Montana.  Structures:  Where  the  property  to  be  charged  with  the 
lien   is   monumental    in   character,    easily   distinguishable,   and   known 


355  CONTENTS   OF    CLAIM    OF    LIEN.  §  404 

or  structure  should  be  primarily  described  as  the  "  property," 
a  description  of  which  is  required  by  the  statute,  the  courts 
have  held,  with  a  more  or  less  clear  statement  as  to  the  prin- 
ciple involved,  that  a  sufficient  designation  of  such  structure 
is  an  adequate  compliance  with  the  law.^^- 

by  a  particular  name,  and  no  structure  of  like  character  existed  in 
the  place,  a  description  as  "  that  certain  two-story  brick  building,  etc., 
with  the  lots  on  which  the  same  is  situated,  comprising  portions  of 
the  following,"  including  a  description  of  certain  blocks  in  the  town 
site,  and  certain  real  estate  outside  of  the  same,  is  sufficient,  under 
5  2131  of  the  Code  of  Civil  Procedure:  Western  I.  W.  v.  Montana  P.  & 
P.  Co.,   30   Mont.   550,   77  Pac.   Rep.   413,   416. 

'■'  See  Willamette  S.  M.  Co.  v.  Kremer,  94  Cal.  205,  209,  29  Pac.  Rep. 
633. 

Montana.  The  property  to  be  identified  is  the  building  or  improve- 
ment on  which  the  lien  is  given,  and  hence  a  particular  description 
of  the  land  is  not  required:  Western  I.  W.  v.  Montana  P.  &  P.  Co., 
30   Mont.    550,    77   Pac.    R%p.   413    (under   Code   Civ.   Proc,   §§  2130,    2131). 

Oregon.  So  where  the  claim  misdescribed  the  block  and  addition 
of  the  town,  the  plaintiff  cannot  be  permitted  to  aver  or  prove  the 
correct  description,  unless  it  is  manifest  that  there  is  a  latent  ambi- 
guity in  the  description;  and  where  such  notice  further  stated  that 
claimant  furnished  the  material  to  B.  in  erecting  a  church  building 
for  the  Methodist  Episcopal  Church,  the  evidence  showing  that  there 
was  only  one  such  church  in  that  place  built  by  B.,  it  was  held  suffi- 
cient: Harrisburg  L.  Co.  v.  Washburn,  29  Oreg.  150,  168,  44  Pac.  Rep. 
390. 

But  where  no  lien  i.s  claimed  upon  any  building,  and  the  descrip- 
tion, being  false,  is  rejected,  tlie  ambiguity  is  patent,  and  cannot  be 
corrected:  Id.;  Hendy  M.  W.  v.  Pacific  Cable  C.  Co.,  24  Oreg.  152,  33 
Pac.  Rep.   403. 

VVasliingrton.  It  seems  that  the  building  must  be  primarily  de- 
scribed, ratljer  than  the  land:  Warren  v.  Quade,  3  Wash.  750,  29  Pac. 
Rep.  827.  And  so  where  the  claim  mentions  the  building  or  structure 
upon  the  lots  described,  and  in  the  next  clause  that  S.  was  the  owner, 
and  caused  the  building  or  structure  to  be  built  and  erected,  it  is  suf- 
ficient:   Collins  V.  Snoke,  9  Wash.  566,  570,  38  Pac.  Rep.   161. 

In  Warren  v.  Q,uade,  supra,  no  building  was  originally  mentioned, 
and  the  notice  referred  to  the  "  said  building  aforesaid,"  and  it  no- 
where appeared  that  the  buildings  referred  to  were  upon  the  lots 
described,  it  was  held  insufficient,  as  "a  lien  cannot  be  maintained  on 
certain  lots,  unless  the  building  upon  which  the  work  was  done  is 
situated  on  or  connected  witli  said  lots,"  said  the  court.  But  see 
Whittier  v.  Stetson  &  Post  M.  Co.,  6  Wash.  190,  193,  33  Pac.  Rep.  393. 
36  Am.  St.  Rep.  149,  in  which  it  was  said:  "The  location  at  the  corner 
of  the  streets  also  helps  to  identify;  and  we  do  not  desire  to  be 
understood  as  holding  that  such  a  description,  without  any  designa- 
tion of  a  lot  or  block,  would  not  be  a  sufficient  identification,  if  the 
quantity  of  land  were  also  identified,  as,  for  example,  if  the  size  of 
the  building  on  the  ground  were  stated."  See  also  Washington  note, 
ante,  this  section,  and  §405,  post.  "This  court  has  held  that  a  lien 
upon  a  building  is  ineffectual,  unless  the  land,  or  some  interest  there- 
in, be  included  in  it:  Kellogg  v.  Littell  &  S.  Mfg.  Co.,  1  Wash.  407, 
25    Pac.    Rep.    461." 

In  Wliitticr  V.  .Stetson  &  V.  M.  Co.,  6  Wash.  190,  194,  33  Pac.  Rep. 
393,  36  Am.  St.  Rep.  149,  referring  to  Willamette  S.  M.  Co.  v.  Kremer, 


§  405  mechanics'  liens.  356 

§  405.  Same,  Description  as  including  too  much  or  too 
little.^^^  A  distinction  is  thought  to  exist  relative  to  the  effect 
of  a  description  of  the  land  to  be  charged  with  the  lien,  as 
including  too  much  or  too  little. 

Too  much  land.  Subject  to  the  rules  stated  in  the  pre- 
ceding sections,  a  claim  of  lien  is  not  rendered  invalid  by  a 
description  of  the  property  to  be  charged  with  the  lien, 
which  includes  more  land  than  the  law  subjects  to  such 
lien.^'^*  Thus  where  some  of  the  land  described  is  not  subject 
to  the  lien,  as,  for  instance,  where  the  lien  is  claimed  upon  a 
"  mining  claim,"  and  part  of  the  land  described  belongs  to  a 
Spanish  grant,  then  not  subject  to  the  lien,  its  inclusion  in 
the  claim  of  lien  does  not  vitiate,  if  any  part  of  it  is  a  mine.^^^ 

Too  little  land.  Whether  a  claim  for  too  little  land  will 
vitiate  the  lien  depends  upon  circumstances,"''  and  the  safer 
practice  is  to  tile  a  claim  describing  the  "  property  "  in  its 
entirety,  and  not  necessarily  against  the  "  object  upon  which 
the  labor  was  performed."  ^^^     The  subject  is  not  free  from 

94  Cal.  205,  209,  29  Pac.  Rep.  633,  the  court  say:  "The  court,  upon  the 
theory  of  liberal  construction,  and  that  the  owner  was  not  misled, 
and  regarding-  tlie  statute  as  authorizing  a  lien  upon  the  '  property,' 
which  it  interpreted  to  be  the  house,  sustained  the  lien";  and  the 
case  of  Tredinnick  v.  Red  Cloud  C.  M.  Co.,  72  Cal.  78,  81,  13  Pac.  Rep. 
152,  was  explained  as  follows:  "The  inception  of  a  mining  title  is 
usually  by  means  of  a  location  notice,  in  which  the  name  is  the  most 
prominent  feature,  and  all  conveyances  follow  by  the  name  only.  A 
public  record,  in  tliat  case,  identified  the  property  in  the  first  place, 
but   there   is  no   such    record   of  buildings." 

"3  See  "Territorial  Extent  of  I^ien,"  §§  438  et  seq.,  post;  "Pleading," 
§§  710  et  seq.,  post;  "Decree,"  §§  930  et  seq.,  post. 

"*  Colorado.  A  lien  will  not  fail  if  the  claimant  described  too 
large  a  tract,  if  the  land  properly  subject  to  it  is  included  therein, 
especially  where  no  innocent  party  is  misled  or  injured:  Cary  H.  Co. 
V.  McCarty,  10  Colo.  App.  200,  50  Pac.  Rep.  744  (1889).  See  Mellor  v. 
Valentine,    3   Colo.    260,    264. 

Montana.  Western  I.  W.  v.  Montana  P.  &  P.  Co.,  30  Mont.  550,  77 
Pac.   Rep.   413. 

Nevada.  A  notice  of  intention  to  claim  a  lien  may  include  more 
property  than  is  subject  to  the  lien:  Maynard  v.  Ivey,  21  Nev.  241,  245, 
29  Pac.   Rep.    1090. 

"=  Bewick  V.  Muir,  83  Cal.  368,  372,  23  Pac.  Rep.  389.  But  see  §§  182 
et  seq.,  ante. 

""  See  "Necessity  of  One  or  More  Claims,"  §366,  ante;  but  see 
especially  "  Extent  of  Lien,"  S§  438  et  seq.,  post. 

"'  Vtali.  The  fact  that  the  claim  does  not  cover  all  the  premises 
upon  which  the  building  was  erected  does  not  affect  the  validity  of 
the  lien:    Culmer  v.  Clift.   14  Utah  286,   47  Pac.  Rep.  85. 

AVa.<4hington.  The  land  may  be  described  by  buildings  or  struc- 
tures covering  tlie  land,  if  it  is  sought  to  subject  the  land  so  covered 


\ 


357  CONTENTS   OF    CLAIM    OF    LIEN.  §  405 

difficulty,  and  in  the  absence  of  a  more  clearly  defined  state- 
ment of  the  meaning  of  the  word  "  property,"  in  connection 
with  the  description  required  by  the  statute,  some  waver- 
ing, if  not  conflict,  in  the  authorities  necessitates  a  careful 
scrutiny  of  the  facts  of  each  particular  case. 

In  case  of  railroad  or  canal.  Generally,  where  a  contractor 
grades  a  section  of  a  railroad  or  canal,^^^  the  description 
should  be  of  the  entire  road  or  canal,  and  the  claim  should 
not  be  against  the  section  merely;  each  case,  however,  as 
before  stated,  depending  upon  its  own  peculiar  circum- 
stances.^^^ 

Mines  and  mining  claims.  In  the  case  of  a  mine  or  mining 
claim,  the  description  should  be  of  the  mine  or  mining  claim, 

to  the  lien,  and  the  buildings  are  such  in  character  or  are  so  de- 
scribed as  to  be  readily  identified:  McHugh  v.  Slack,  11  Wash.  370, 
373,  39  Pac.  Rep.   674    (under  Gen.  Stats.,   §  1G67). 

But  see,  under  the  same  statute,  Whittier  v.  Stetson  &  Post  M.  Co., 
6  Wash.  190,  33  Pac.  Rep.  393,  36  Am.  St.  Rep.  149,  in  which  the 
description  was  held  insufficient,  where  the  building  was  designated 
as  "the  Brodek  and  Schlessinger  Building,"  and  it  covered  the  "south 
half  of  lot  6,"  which  was  not  included  in  the  description  of  the  land, 
the  building  being  more  or  less  attached  to  another  building,  owned 
by  other  parties,  constructed  at  the  same  time,  which  rendered  the 
two  in  the  nature  of  a  single  structure.  See  Washington  note,  §  404, 
ante. 

See  also  Cowie  v.  Ahrenstedt,  1  Wash.  416,  25  Pac.  Rep.  458,  in 
which  it  was  held  that  the  description  in  the  claim  covering  the 
whole  lot  was  insufficient,  where  it  covered  only  a  part  of  tlie  lot 
other  portions  of  the  lot  being  owned  by  others,  and  the  description 
of  the  part  covered  by  the  building  not  being  otherwise  sufficiently 
definite.  The  principle  as  laid  down  in  Kellogg  v.  Littell  &  Smythe 
Mfg.  Co.,  1  Wash.  407,  25  Pac.  Rep.  461,  seems  to  be,  that  although 
the  area  of  the  tract  on  which  the  building  is  situated  may  be  certain 
and  definite,  if  the  location  of  a  smaller  piece  situated  within  the 
tract  upon  whicli  the  building  is  located  is  indefinite,  the  lien  cannot 
be  sustained. 

"•*  South  Fork  C.  Co.  v.  Gordon,  2  Abb.  (U.  S.)  479,  22  Fed.  Cas.  826 
8  Am.  L.  Rep.  N.  S.  279  (Cir.  Ct.  Cal.);  Brooks  v.  Burlington  &  S  w' 
R.  Co.,  101  U.  S.  443,  bk.  25  L.  ed.  1057;  but  see  South  Fork  C  Co  v' 
Gordon,  73  U.  S.  (6  Wall.)  561,  bk.  18  L.  ed.  894,  and  dissenting  opinion 
of, Justice  Field:  Pacific  R.  M.  Co.  v.  Bear  V.  Irr.  Co.,  120  Cal.  94  96 
52  Pac.  Rep.   136,   65  Am.  St.  Rep.   158. 

And  see  "  Property  Viewed  as  an  Entirety,"  §§  447  et  seq.,  post. 
The   claim   must,    in    general,    be    claimed   and   enforced   against   an 
entire  railroad,  and  not  against  a  particular  section  thereof:    Bring- 
ham  V.  Knox,  127  Cal.  40,  43,  59  Pac.  Rep.  198. 

"»  Cox  V.  Western  Pac.  R.  Co.,  44  Cal.  18,  28,  s.  c.  47  Cal.  87,  89.  In 
this  case,  importance  was  attached  to  the  fact  that  the  contracts 
were  entire,  for  the  whole  work,  and  plaintiffs  did  not  fully  perform, 
and  there  was  nothing  to  show  an  abandonment  or  interruption  of 
the  work.  See  Pacific  R.  M.  Co.  v.  Bear  V.  Irr.  Co.,  120  Cal  94  98  52 
Pac.   Rep.   136,   65   Am.  St.   Rep.    158. 


§§  406, 407  mechanics'  liens.  358 

and  not  of  the  object  or  structure  erected  upon  it/^°  or  upon 
which  the  repairs  were  made.^*^ 

§  406.  Same.  Two  or  more  descriptions. ^^^  Statutory 
provision.  The  California  Code  of  Civil  Procedure  ^^^  pro- 
vides :  "  In  every  case  in  which  one  claim  is  filed  against  two 
or  more  buildings,  mining  claims,  or  other  improvements 
owned  by  the  same  person,  the  person  filing  such  claim  must 
at  the  same  time,  designate  the  amount  due  to  him  on  each 
of  such  buildings,  mining  claims,  or  other  improvements; 
otherwise  the  lien  of  such  claim  is  postponed  to  other  liens." 

§  407.  Same.  Application  of  provision  as  to  demands 
against  separate  buildings.  The  requirement  quoted  in  the 
last  section  applies  to  eases  in  which  one  claim  is  filed  against 
two  or  more  separate  and  distinct  "  buildings,  mining  claims, 
or  other  improvements  "  owned  by  the  same  person,  and  not 
to  the  case  where  all  the  work  was  performed  on  the  same 
property,  although  upon  different  portions  of  it  or  upon  dif- 
ferent objects  situated  thereon. ^^*  It  also  applies  to  the  case 
of  one  or  more  buildings  erected  upon  the  same  lot,  though 
contracted  for  at  different  times  and  under  different  unfiled 
contracts  between  the  owner  and  the  same  original  con- 
tractor.^^^ 

180  Williams  v.  Mountaineer  G.  M.  Co.,  102  Cal.  134,  142,  37  Pac.  Rep. 
702,  36  Id.  388,  explained  in  Berentz  v.  Belmont  O.  M.  Co.,  148  Cal.  577, 
580,  84  Pac.  Rep.  47,  113  Am.  St.  Rep.  308.  See  Pacific  R.  M.  Co.  v. 
Bear  V.  Irr.  Co.,  120  Cal.  94,  96,  52  Pac.  Rep.  136,  65  Am.  St.  Rep.  158. 

See    "Extent   of  Lien,"    §§438   et   seq.,   post. 

181  Silvester  v.  Coe  Q.  M.  Co.,   80  Cal.   510.   512,   22   Pac.  Rep.   217. 
1S2  See  §  366,  ante;    "Extent  of  Lien,"  §§  438  et  seq.,  post. 

183  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1188. 

1S4  Dickenson  v.  Bolyer,  55  Cal.  285,  286.  See  Williams  v.  Moun- 
taineer G.  M.  Co.,  102  Cal.  134,  141,  34  Pac.  Rep.  702,  36  Id.  388,  and 
Tibbetts  v.  Moore,  23  Cal.  208,  215.  But  see  Lothian  v.  Wood,  55  Cal. 
159,   163. 

As  to  mechanic's  lien  In  case  of  separate  building,  see  2  Am.  &  Eng. 
Ann.   Cas.   685. 

Utah.     Eccles  L.  Co.  v.  Martin   (Utah),  87  Pac.  Rep.  713,  718. 

Washington.  See  Powell  v.  Nolan,  27  Wash.  318,  67  Pac.  Rep.  712, 
720. 

185  Booth  V.  Pendola,  88  Cal.  36,  40,  23  Pac.  Rep.  200,  25  Id.  1101. 

Washington.  Separate  notices  claiming  separate  liens  upon  each 
of  three  houses  situated- upon  a  single  lot  are  not  insufficient  because 
they  describe  eacli  of  the  houses  as  being  upon  the  lot,  and  do  not 
specify  any  particular  portion  thereof  upon  which  each  house  is  sit- 
uated,  when   no   particular  portion   of   the   lot   has  been   set   apart   by 


359  CONTENTS   OP    CLAIM    OP    LIEN.  §  407 

Specific  amount  due.  Such  designation  is  not  necessary, 
unless  there  is  in  fact  a  specific  "  amount  due  to  him  "  on 
each  of  such  improvements,  as  it  may  frequently  happen  that 
a  contractor  would  construct  several  buildings  under  one 
contract,  and  there  would  not  be  a  specific  amount  due  to 
him  on  each  of  such  buildings. ^^^ 

Consolidation  of  mining  claims.  But  where  two  or  more 
mining  location^  are  consolidated,  and  thereafter  treated  and 
worked  as  one  mining  claim,  such  different  locations  cease 
to  constitute  different  claims,  and  become  in  law,  as  they  are 
in  fact,  only  parts  of  one  claim,  and  this  section  has  no  appli- 
cation.^'*'' 

Grading  and  street-work.  And  it  is  thought  that  the  pro- 
vision has  no  application  to  grading  and  other  work,  under 
the  Code  of  Civil  Procedure,^^^  on  property  and  work  men- 
tioned in  the  specific  provision  relating  thereto,  as  there  is 
no  "  improvement,"  within  the  meaning  of  section  eleven 
hundred  and  eighty-eight  ^^^  of  that  code.^"" 

the  owner  as  necessary  to  be  used  in  connection  witli  each  house. 
Under  Laws  1893,  p.  32  (Ballinger's  Ann.  Codes  and  Stats.,  §§  5900  et 
seq.),  such  claims  are  sufficient,  when  they  indicate  an  intention  to 
claim  a  lien  upon  the  entire  lot  and  the  buildings  thereon  situated  for 
all  the  labor  done  and  materials  furnished  for  all  the  houses:  Sulli- 
van V.  Treen.  13  Wash.  261,  43  Pac.  Rep.  38.  But  where  the  claims 
attempted  to  segregate  the  amounts,  but  did  so  indefinitely,  the  claim 
was  held  insufficient:  Merchant  v.  Humeston,  2  Wash.  Ter.  433,  7  Pac. 
Rep.   903. 

iM  ^va^ren   v.   Hopkins,  110   Cal.    506,   42   Pac.   Rep.    986. 

WuMhingtun.  See  Wheeler  v.  Ralph,  4  W^ash.  617,  629,  30  Pac.  Rep. 
709. 

'"'  Tredinnick  v.  Red  Cloud  C.  M.  Co.,  72  Cal.  78,  84,  13  Pac.  Rep. 
152;  Hamilton  v.  Delhi  M.  Co.,  118  Cal.  148,  151,  50  Pac.  Rep.  378.  See 
Malone  v.  Big  Flat  G.  M.  Co.,  76  Cal.  578,  583,  18  Pac.  Rep.  772. 

Colorado.  Such  statement  not  required:  Rico  R.  &  M.  Co.  v.  Mus- 
grave,    H   Colo.   79,    23   Pac.   Rep.   458    (1883). 

Idaho.  Idaho  M.  &  M.  Co.  v.  Davis,  123  Fed.  Rep.  396,  397,  59 
C.  C.  A.   200. 

^  Kerr's  Cyc.  Code  Civ.  Proc,  §  1191. 

"»  Kerr's  Cyc.  Code  Civ.  Proc,  §  1188. 

'»«  Warren  v.  Hopkins,  110  Cal.  506,  42  Pac.  Rep.  986.  See  "Priori- 
ties," §§  486  et  seq.,  post. 

Ah  to  mechanic's  lien  for  ^vorlc  on  streets  and  sideivalks,  see  4  Am. 
&  Eng.  Ann.  Cas.   1015. 

Colorado.  Unless  a  material-man's  claim  arising  from  the  con- 
struction of  improvements  on  a  city  lot  and  a  portion  of  an  adjoining 
lot  is  filed  both  on  the  full  lot  and  the  portion  of  a  lot,  the  entire  debt 
may  be  paid  out  of  the  lot  which  was  described  in  the  claim,  no  other 
interest  having  intervened:  but  in  order  to  assert  a  claim  against 
both  lots,  they  should  have  been  included  in  the  statement:  Perkins 
V.  Boyd   (Colo.),  86  Pac.  Rep.   1045. 


§§  408, 409  mechanics'  liens.  360 

Effect  of  non-compliance.  The  only  effect  of  non-compli- 
ance is  to  give  precedence  to  other  liens/®^  and  it  is  no  con- 
cern of  the  owner  of  the  lot  whether  the  section  has  been 
complied  wuth  or  not.^^^ 

§  408.  Claim  of  charge.  The  Code  of  Civil  Procedure  ^^^ 
provides  that  the  person  claiming  the  benefit  of  this  chapter 
shall  file  a  "  claim  "  of  lien  "  containing  a  description  of  the 
property  to  be  charged  with  the  lien."  ^®*  No  direct  state- 
ment, in  the  claim,  of  the  intention  to  claim  a  charge  upon  the 
property  described  is  necessary,  and  it  is  sufficient  if  such 
intention  appears  generally. ^^^  Thus  where  the  claim  avers 
that  the  person  claimed  the  benefit  of  the  provisions  of 
chapter  two,  title  four,  part  three,  of  the  Code  of  Civil  Pro- 
cedure, it  is  a  sufficient  statement  that  the  claimant  claimed  a 
lien  upon  the  property  described ;  "*^  and  it  is  of  little  conse- 
quence whether  the  claimant  styles  the  instrument  which  he 
files  a  "  claim  of  lien  "  or  "  a  claim  of  benefit  under  the  lien 
law."  1" 

§  409.  Signature.  There  is  no  express  provision  in  the 
present  statute  requiring  the  claim  to  be  signed,  although  a 

"1  See  authorities  in  note  192,  post. 

Idabo.  Phillips  v.  Salmon  R.  M.  &  D.  Co.,  9  Idaho  149,  72  Pac.  Rep. 
886  (under  Sess.  Laws  1899,  p.  148,  §7);  Idaho  M.  &  M.  Co.  v.  Davis, 
123  Fed.  Rep.  396,  397,  59  C.  C.  A.  200  (under  Sess.  Laws  1893,  p.  51, 
§7). 

Utah.  See  Eccles  L.  Co.  v.  Martin  (Utah),  87  Pac.  Rep.  713;  Garner 
V.  Van  Patten,  20  Utah  342,  58  Pac.  Rep.  684    (Rev.  Stats.  1898). 

"2  Booth  V.  Pendola,  88  Cal.  36,  40,  43.  See  various  stages  of  this 
decision  in  23  Pac.  Rep.  200,   24  Id.  714,   25  Id.  1101. 

And  see  "  Priorities,"  §§  486  et  seq.,  post. 

Oregon.  See  Willamette  S.  M.  L.  &  M.  Co.  v.  Shea,  24  Oreg.  40.  53, 
32  Pac.  Rep.  759. 

193  Kerr's  Cyc.  Code  Civ.  Proc,  §  1187. 

^**  See   "Claim  Generally,"   §§361   et   seq.,   ante. 

"5  In  Gordon  v.  South  Fork  C.  Co.,  1  McAl.  C.  C.  513,  10  Fed  Cas. 
817  (reversed  in  73  U.  S.  (6  Wall.)  561,  bk.  18  L.  ed.  894,  on  another 
point),  it  was  held  that  the  fact  that  the  claim  of  lien  did  not  state 
that  it  was  intended  to  hold  a  lien  on  the  specific  work  under  the  acts 
of  1850  and   1853  did  not  affect  the  lien. 

Colorado.  Claim  of  charge  upon  improvements  and  land,  under 
statutes  of  1883,  1889,  does  not  affect  decree  for  sale  of  improvements 
only,  where  there  is  a  prior  encumbrance:  Bitter  v.  Mouat  L.  &  I.  Co., 
10  Colo.  App.  307,  51  Pac".  Rep.  519. 

"«  Russ  L.  Co.  V.  Garrettson.  87  Cal.  '589,  595.  25  Pac.  Rep.  747; 
Bringham  v.  Knox,  127  Cal.  40,  44.   59  Pac.  Rep.   198. 

"'  Madary  v.  Smartt,  1  Cal.  App.  498,  500,  82  Pac.  Rep.   561. 


361  CONTENTS   OF    CLAIM    OP   LIEN.  §  410 

verification  is  required ;  '"'^  but,  under  earlier  statutes,  con- 
taining provisions  similar  to  those  in  the  present  statute,^"'' 
and  not  requiring  the  claim  to  be  signed,  it  was  held  that  the 
signing  of  the  verification  attached  to  the  claim  was  suffi- 
eient.2°° 

§410.  Verification.201  The  present  statute  ^o^  provides 
that  the  claimant  must  file  a  claim  of  lien,  "which  claim 
must  be  verified  by  the  oath  of  himself,  or  of  some  other 
person. 


"  203 


"«  See   "Verification,"  §410,  post. 

Washington.     Ballinger's  Ann.  Codes  and  Stats.,  §  5904,  required  the 
claim  to  be  signed:    See  Hopkins  v.  Jamieson-Dixon  M.  Co.    11  Wash 
308,   317,   39   Pac.   Rep.    815. 

199  Kerr's  Cyc.   Code  Civ.  Proc,   §  1187. 

2°"  Hicks  V.  Murray,  43  Cal.  515,  522,  523  (under  the  act  of  1868)  in 
■which  it  was  said  in  the  dissenting  opinion  of  Crockett,  J.  (concur- 
ring, however,  upon  this  point):  -Nor  is  it  necessary  that  the  state- 
ment should  be  signed  by  the  claimant,  provided  it  appears  in  the 
body  of  the  statement  who  the  claimant  is  and  by  whom  the  materials 
were  furnished  or  the  labor  performed;  and  provided,  also  the  state- 
ment is  verified  by  the  claimant.  These  would  sufficiently  Identify 
the  claimant  and  authenticate  the  statement,  without  the  actual  sig- 
nature of  the  claimant  to  the  body  of  the  statement.  No  useful 
purpose  could  be  subserved  by  his  signature  to  the  body  of  the 
statement   which    he   verifies  with  his   oath." 

Under  the  act  of  1S«-',  notice  to  the  owner,  although  not  expressly 
required  to  be  signed  by  the  statute,  and  though  it  purported  in  the 
body  of  the  notice  to  come  from  the  claimant,  yet  where  it  was  not 
shown  to  have  been  in  his  handwriting,  was  held  invalid-  Davis  v 
Livingston,  29  Cal.  283,  288.  The  general  principle  of  this  decision 
does  not  seem  to  be  in  accord  with  the  later  decisions.  See  "Notice 
to  Owner,"  §§  547  et  seq.,  post. 

New  Mexico.  A  claim  is  not  ineffectual  by  reason  of  the  fact  that 
the  claimant  uses  the  initials  of  his  christian  name,  instead  of  sign- 
ing in  full.  The  use  of  initials  only.  Instead  of  writing  out  the  chris- 
tian name  of  a  person,  in  any  legal  instrument,  is  a  practice  not  to  be 
commended:    Pearce  v.  Albright,  76  Pac.  Rep.  286. 

Utah.  Where  the  claim  is  subscribed  "  Duvall  and  Mills  by 
Richard  Duvall,"  and  was  sworn  to  by  Duvall,  one  of  the  claimants 
and  joint  contractor,  it  is  sufficient:  Culmer  v.  Caine,  22  Utah  216  61 
Pac.  Rep.  1008,  1009   (under  Laws  1890,  ch.  xxx,  §  10).   '  "     ' 

Waahingrton.  Individual  doing  business  under  name  of  "  Western 
Mill   Factory":    See  Littell   v.   Saulsberry,    40   Wash.   550,    82   Pac.   Rep. 

="'  See,    generally,    §  409,    ante. 

^''2  Kerr's  Cyc.  Code  Civ.  Proc,  §  1187. 

='«  See  Wagner  v.  Hansen,  103  Cal.  104,  107,  37  Pac.  Rep  195  and 
the  dissenting  opinion  of  Crockett.  J.,  in  Hicks  v.  Murray  4^  Pal'  r^iK 
523   (18GS).  ■^'  ^^'-   ''^^• 

Colorado.     The  statement  was  required  to  be  verified-   Rice  v    Car 
michael,  4  Colo.  App.  84,  87,  34  Pac.  Rep.  1010  (1889). 


§  -410  mechanics'  liens.  362 

Provision  as  to  verification  of  pleadings  not  applicable. 

Section  four  hundred  and  forty-six  of  the  Code  of  Civil  Pro- 
cedure ^°*  is  applicable  solely  to  pleadings  in  actions  or  pro- 
ceedings, and  a  claim  of  lien  is  not  such  a  pleading,  and 
hence  said  section  is  not  applicable  to  such  verification,  but 
section  eleven  hundred  and  eighty-seven  -°°  is  the  proper 
section  to  follow.  The  claim  may  be  verified  by  any  person 
who  is  possessed  of  sufficient  knowledge  upon  the  subject; 
and  the  particular  relation  which  he  bears  to  the  claimant  is 
immaterial. ^""^ 

Form  of  verification  is  therefore  not  required  to  be  in 
form  like  that  attached  to  a  pleading  provided  for  in  section 
four  hundred  and  forty-six  of  the  Code  of  Civil  Procedure,  as 

Verification  held  to  contain  more  than  the  statute  requires:  Gut- 
shall  V.  Kornaley  (Colo.),  88  Pac.  Rep.  158  (under  Sess.  Laws  1899,  p. 
270,  c.  cxviil,  §  8). 

Nevada.  Held  that  the  county  recorder  could  administer  oath 
and  certify  to  claim:   Arrington  v.   Wittenberg,   12  Nev.   99. 

IVetv  Mexico.  Probate  clerk  may  verify  claim:  Bucher  v.  Thomp- 
son,  7  N.  M.   115,   32  Pac.  Rep.   498. 

If  the  claim  is  not  verified,  there  is  no  lien,  and  the  verification 
cannot  be  amended:  Minor  v.  Marshall,  6  N.  M.  194,  198,  27  Pac.  Rep. 
481;  Finane  v.  Las  Vegas  H.  &  I.  Co.,  3  N.  M.  256,  5  Pac.  Rep.  725  (sig- 
nature and  seal  of  office  lacking). 

]Vew  Mexico.  Verification  before  a  clerk  of  a  court  of  record  of  a 
sister  state,  held  sufficient:  Genest  v.  Las  Vegas  M.  B.  Assoc,  11  N.  M. 
251,   67   Pac.   Rep.    743    (under  Comp.   Laws   1897,    §  2221). 

Oregon.  Where  the  verification  v/as  not  signed,  it  was  held  tliat 
the  statute  does  not  require  any  particular  form  of  verification,  and 
where  tlie  certificate  of  the  notary  shows  that  one  of  the  claimants 
did  verify  the  claim,  it  is  sufficient:  Ainslie  v.  Kohn,  16  Oreg.  363,  19 
Pac.  Rep.  97. 

AVasliington.  The  omission  of  the  notary's  seal  was  held  to  be  a 
fatal  defect,  as  the  notice  "was  not  primarily  intended  for  use  in 
court  or  in  any  judicial  proceeding,  but  to  obtain  and  preserve  the 
lien":  Gates  v.  Brown,  1  Wash.  470,  471,  25  Pac.  Rep.  914  (under  the 
peculiar  language  of  the  statute);  Stetson  &  Post  M.  Co.  v.  McDonald, 
5  Wash.  496,  32  Pac.  Rep.  108  (holding  that  parol  evidence  of  tlie  fact 
that  the  claim  had  been  sworn  to  was  inadmissible,  citing  the  pre- 
ceding case). 

As  to  omission  to  add  to  signature  the  place  of  residence  of  notary, 
see  Sullivan  v.  Treen,  13  Wash.  261,  43  Pac.  Rep.  38. 

Verification  by  attorney  for  foreign  corporation:  See  Huttig  Bros. 
Mfg.  Co.  V.  Denny  Hotel  Co.,  6  Wash.  122,  32  Pac.  Rep.  1073.  See  also, 
as  to  verification,  Hopkins  v.  Jamieson-Dixon  M.  Co.,  11  Wash.  308,  39 
Pac.  Rep.  815   (Rev.  Stats.,  §  1521). 

-"*  Kerr's  Cyc.  Code  Civ.  Proc,  §  446. 

20D   Kerr's  Cyc.  Code  Civ.  Proc.  §  1187. 

*»•  And  Kerr's  Cyc.  Code  Civ.  Proc,  §  446,  is  applicable  solely  to 
pleadings  in  actions  and  proceedings,  and  a  claim  of  lien  is  not  such 
a  pleading:  Parke  &  Lacy  Co.  v.  Inter  Nos  O.  &  D.  Co.,  147  Cal.  490, 
494,   82  Pac.  Rep.   51. 


363  CONTENTS   OP    CLAIM    OF   LIEN.  §  410 

it  is  not  a  pleading.-"^  Indeed,  such  form  would  probably 
not  comply  with  the  requirements  of  the  section ;  and  where 
the  affidavit  attached  to  the  claim  is  that  the  same  is  "  true," 
it  is  sufficient ;  and  the  omission  of  the  words,  "  of  his  own 
knowledge,"  is  not  a  defect ;  -°*  nor  is  the  failure  to  state  that 
the  "  claim  is  true,"  when  it  recites  "  that  the  facts  stated 
therein  are  true."  -°^  And  it  is  not  necessary  to  set  out  the 
particulars  contained  in  the  body  of  the  claim.^" 

^'  Kerr's  Cyc.  Code  Civ.  Proc.,  §  446,  and  note. 

2»»  Arata  v.  Tellurium  G.  &  S.  M.  Co.,  65  Cal.  340,  344,  4  Pac.  Rep.  195; 
Reed  v.  Norton,  90  Cal.  590,   602,   26  Pac.  Rep.  767,  27  Id.  426. 

Montana.  A  statement  of  lien  on  behalf  of  a  corporation,  verified 
by  its  president  on  information  and  belief,  was  held  insufficient,  under 
§  2131  of  the  Code  of  Civil  Procedure,  requiring  the  claim  to  be 
"  verified  by  affidavit,"  such  statement  being  held  to  be  no  affidavit: 
Western  P.  Co.  v.  Fried,  33  Mont.  7,  81  Pac.  Rep.  394,  114  Am.  St. 
Rep.    799. 

Oregon.  "The  statute  does  not  prescribe  any  particular  form  in 
which  such  verification  shall  be  made.  No  doubt  the  better  practice 
would  be  in  the  form  of  an  affidavit  to  be  annexed  to  the  claim,  to  the 
effect  that  the  facts  therein  stated  are  true";  and  a  claim  was  held 
sufficient  where  the  month  on  which  the  subscription  was  made  was 
omitted:    Kezartee  v.  Marks,  15  Oreg.  529,  16  Pac.  Rep.  407. 

^Vashington.  The  affidavit  must  state  that  the  affiant  believes  the 
claim  to  be  just  (Ballinger's  Ann.  Codes  and  Stats.,  §904);  and  a 
statement  "  that  the  claim  is  just  and  correct  "  (Johnston  v.  Harring- 
ton, 5  Wash.  73,  31  Pac.  Rep.  316),  or  an  allegation  that  the  affiant 
believes  tlie  same  to  be  true  (Sautter  v.  McDonald,  12  Wash.  27,  40 
Pac.  Rep.  418),  is  equivalent. 

And  see,  where  the  claim  stated  that  a  certain  amount  was  due 
after  deducting  all  just  credits  and  offsets,  Fairhaven  L.  Co.  v.  Jordan, 
5  Wash.  729.  32  Pac.  Rep.  729. 

2»»  Corbett  v.  Chambers,  109  Cal.  178,  185,  41  Pac.  Rep.  873. 

AVasliington.  And  the  employment  of  the  term  "  lien,"  instead  of 
"  claim  of  lien,"  referred  to  in  the  verification,  does  not  render  it  in- 
suHicient:    Sautter  v.  McDonald,   12  Wash.  27,  40  Pac.  Rep.  418. 

-*•  Reed  v.  Norton,  90  Cal.  590,  602,  26  Pac.  Rep.  767,  27  Pac.  Rep. 
426. 

New  Mexico.  The  whole  claim  must  be  verified,  however:  Minor  v. 
Marshall,  6  N.  M.  194,  199,  27  Pac.  Rep.  481;  Finane  v.  Las  Vegas  H.  & 
1.  Co.,  3  N.  M.  256,  5  Pac.  Rep.  725;  and  the  reference  of  the  verification 
must  be  to  the  whole  claim,  and  not  to  a  part  of  it.  And  so  where  the 
affidavit  limits  itself  by  stating  "  that  the  abstract  of  indebtedness 
mentioned  and  described  in  the  foregoing  notice  is  true  and  correct," 
etc.,  it  is  insufficient,  the  court  saying,  "It  should  be  remembered  that 
the  rule  of  construction,  whether  strict  or  liberal,  has  reference  to  the 
language  of  the  statute,  not  to  that  used  in  compliance  with  the 
statute.  The  question  here  is,  not  what  construction  shall  be  given  to 
the  words  'abstract  of  indebtedness,'  but  to  the  word  'verification,'  as 
used  in  the  statute.  We  said  that  the  word  'verification,'  in  the 
statute,  does  not  require  an  alfidavit;  it  does  not  require  the  signa- 
ture of  the  party  to  the  affidavit;  it  does  not  require  the  word  'claim' 
to  be  used;  but  it  does  require  that  the  officer  who  certifies  to  the 
oath  should  sign  the  same,  and  attach  his  seal  thereto;  it  does  require 
the  use  of  such  plain  and  unmistakable  language  that  there  can  be  no 


§  J:ll  mechanics'  liens.  364 

Errors  and  omissions.  It  was  held  sufficient  where  the 
claim  was  subscribed  by  "  Williams  &  Whitmure,"  and  the 

verification  commenced,  " ,  being  duly  sworn,  deposes 

and  says  that  he  is  one  of  the  persons  named  as  Williams 
&  Whitmore  in  the  foregoing  claim  of  lien,"  etc.,  and  it  was 
signed  by  A.  C.  Williams;  for,  evidently,  some  one  who  in 
the  claim  of  lien  was  named  Williams  or  Whitmore  was 
sworn,  and  the  signature  and  certificate  of  the  magistrate 
fixed  the  matter  beyond  question,  the  blank  not  being  more 
indefinite  than  the  Avord  "  affiant  "  would  have  been.^^^ 

Verification  of  claim  of  lien,  stating  that  the  person  verify- 
ing is  the  agent  of  the  "  plaintiff,"  will  be  held  to  mani- 
festly mean  that  he  is  the  agent  of  the  claimant,  as  there  was 
then  no  action,  and,  technically,  no  "  plaintiff."  -^- 

By  agent  or  attorney.  A  verification  by  an  attorney,  who 
states  that,  "  as  such  attorney,  he  has  knowledge  of  the 
facts,"  and  makes  affidavit  for  the  claimant,  on  account  of 
his  absence  from  the  state,  is  sufficient.^^^ 

Time  of  verification.  The  fact  that  a  verification  was  made 
several  months  prior  to  the  completion  of  the  building  and  to 
the  filing  of  the  claim  does  not  render  the  verification  prema- 
ture or  insufficient.-^* 

§  411.  Uncertainty  in  claim.^^^  It  is  thought  that  where 
the  claim  of  lien  is  uncertain  it  will  be  construed  against  the 

reasonable  doubt  but  that  he  is  swearing  to  the  wliole  claim":  Minor 
V.  Marsliall,  6  N.  M.  194,  199,  27  Pac.  Rep.  481. 

Oklahoma.  See  El  Reno  E.  L.  &  T.  Co.  v.  Jennison,  5  Okl.  759,  50 
Pac.  Rep.  144. 

="  San  Diego  L.  Co.  v.  Wooldredge,  90  Cal.  574,  580,  27  Pac.  Rep.  4.31. 

*"  Parke  &  Lacy  Co.  v.  Inter  Nos  O.  &  D.  Co.,  147  Cal.  490,  494.  82 
Pac.    Rep.    51. 

2"  Jones  V.  Kruse,   138  Cal.   613,   617,   72   Pac.   Rep.    146. 

Montana.  So  where  the  affidavit  recited  that  M.,  the  assistant 
manager  of  the  corporation  claimant,  was  dTily  sworn,  and  was  sub- 
scribed with  the  name  of  the  corporation  by  M.,  assistant  manager, 
it  was  held  sufficient:  Montana  L.  &  M.  Co.  v.  Obelisk  M.  &  C.  Co.,  15 
Mont.   20,  37  Pac.  Rep.  S97. 

Oregon.  Verification  by  the  secretary  of  corporation,  held  suf- 
ficient: Cooper  M.  Co.  v.  Delahunt,  36  Oreg.  402,  60  Pac.  Rep.  1.  51  Id. 
649   (under  Hill's  Ann.  Laws,   §  3673). 

Utah.  Verification  by  attorney:  Culmer  v.  Clift,  14  Utah  286,  47 
Pac.  Rep.   85. 

^i-"  Coss  V.  MacDonough,  111  Cal.  662,  66S,  44  Pac.  Rep.  325. 

2^^  See,  generally,  "Amendment,"  S  415,  post;  "Variances,"  §§835  et 
seq.,  post. 


365  CONTENTS    OF    CLAIM    OF    LIEN.  §  412 

claimant.  Thus  where  the  claim  stated  that  the  contract  was 
entered  into  "  on  or  about  July  1st,"  to  furnish  certain  mate- 
rials for  the  building,  the  claimant  was  not  permitted  to 
recover  for  any  materials  furnished  before  that  date, 
although  under  a  contract  entered  into  before  that  date.-^® 

§  412.  Mistake  and  error  in  claim.^i^  A  new  section  -^* 
added  to  the  California  Code  of  Civil  Procedure  provides  as 
follows :  "  No  mistakes  or  errors  in  the  statement  of  the 
demand,  or  of  the  amount  of  credits  and  offsets  allowed,  or 
of  the  balance  asserted  to  be  due  to  claimant,  nor  in  the 
description  of  the  property'  against  which  the  claim  is  filed, 
shall  invalidate  the  lien,  unless  the  court  finds  that  such 

2i«  Goss  V.  Strelitz,  54  Cal.  640,  643.  See  Santa  Monica  L.  &  M.  Co. 
V.  Hege,  48  Pac.  Rep.  69;  and  see  opinion  on  rehearing,  119  Cal.  376. 
51  Pac.  Rep.  555. 

See   "  Complaint,"   §  670,  post. 

Date  of  contract  need  not  be  iiisertetl.  There  is  nothing  in  the 
statute  expressly  requiring  the  date  of  the  contract  to  be  inserted 
in  the  claim.     See  "Unnecessary  Statements,"   §§374  et  seq.,  ante. 

Incertainty  as  to  wliether  one  or  t^vo  building;!* :  See  Eaton  v.  Ma- 
latesta.  92  Cal.  75,  76,  28  Pac.  Rep.  54. 

Uncertainty  in  description:    See  §§  399   et  seq.,   ante. 

See    §§  371    et   seq..    ante,   and   §§  387    et   seq.,    ante. 

"'  See,  generally,  "Amendment,"  §415,  post;  "Variances,"  §§835  et 
seq.,  post;  "Construction,"  §317,  ante;  "Contract,"  §§  387  et  seq.,  ante. 

iSrror  as  to  time  of  last  payment:  See  Stimson  M.  Co.  v.  Riley 
(Cal.,  Dec.  20,  1895),  42  Pac.  Rep.  1072. 

As  to  truthfulness  of  statement  in  regard  to  terms  of  contract, 
see  McClain  v.  Hutton,  131  Cal.  132,  141,  61  Pac.  Rep.  273,  63  Id.  182, 
622. 

See   also    §  389,    ante. 

Nevada.  Claiming  more  than  is  due,  by  mistake,  and  without 
fraud  or  wrongful  intent,  does  not  invalidate  claim  of  lien:  Salt 
Lake  H.  Co.  v.  Chainman  M.  &  E.  Co.,  137  Fed.  Rep.  632.  638  (Cir. 
Ct.   Nev.). 

OrcRon.  Mistake  made  in  an  honest  belief  as  to  its  correctness 
will  not  avoid  the  claim,  but  otherwise  if  claimant  knows  the  state- 
ment to  be  untrue,  or  could  have  known  by  the  exercise  of  reason- 
abl,e  diligence:  Cooper  M.  Co.  v.  Delahunt,  36  Greg.  402,  60  Pac.  Rep.  1, 
51  Id.  649  (the  lien  claimed  shoAved  a  credit  of  three  hundred  dollars, 
while  the  court  found  a  four-hundred-dollar  credit,  and  there  was  a 
difference  of  opinion  between  the  parties  as  to  the  fifty-dollar  dif- 
ference). 

rtab.  Claimant  is  not  entitled  to  recover  more  than  the  amount 
set  up  in  his  claim  of  lien:  Culmer  v.  Caine,  22  Utah  216,  61  Pac.  Rep. 
lOOS.    1011. 

Washington.  Interest  should  not  be  allowed,  when  not  claimed  in 
the  claim  of  Hen,  especially  where  the  complaint  does  not  pray  for 
such  interest:    Huetter  v.  Redhead,  31  Wash.  320.  71  Pac.  Rep.  1016. 

-'"  Kerr's  Cyc.  Code  ("iv.  Proc,  §  1203a  (in  effect  sixty  days  from 
and  after  March  22.   1907). 


§  413  mechanics'  liens.  3G6 

mistake  or  error  in  the  statement  of  the  demand,  credits  and 
offsets,  or  of  the  balance  due,  was  made  with  the  intent  to 
defraud,  or  the  court  shall  find  that  the  innocent  third  party, 
without  notice,  direct  or  constructive,  has  since  the  claim  was 
filed,  become  the  bona  fide  owner  of  the  property  liened 
upon,  and  that  the  notice  of  claim  was  so  deficient  that  it 
did  not  put  the  party  upon  further  inquiry  in  any  manner." 
Analysis  of  provision.  It  will  be  noted  that  this  section 
makes  reference  only  to  mistakes  or  errors  in  the  state- 
ment of  — 

1.  The  demand; 

2.  The  amount  of  credits  and  offsets ; 

3.  The  balance  asserted  to  be  due  to  claimant ;  and 

4.  The  description  of  the  property. 

The  several  requirements  as  to  the  claim  of  lien  are  not  all 
here  enumerated.  The  evident  intent  was  to  make  a  statu- 
tory enunciation  of  a  general  rule,  and  probably  there  is 
no  intendment  that  a  stricter  rule  shall  be  applied  in  regard 
to  the  requirements  not  so  enumerated ;  i.  e.,  the  names  of  the 
owner,  employer,  and  purchaser,  and  the  terms,  time  given, 
and  conditions  of  the  contract.  This  subject  has  been 
considered  in  some  detail  under  various  subheads  in  the 
preceding  part  of  this  work.^^® 

§  413.  Same.  Unnecessary  statements.  It  has  already 
been  shown  that  a  misstatement  of  a  fact  not  required  by  the 
statute  to  be  stated  will  not  invalidate  the  claim.^^"  Thus 
where  there  is  a  mistaken  statement  as  to  the  date  of  the 
completion  of  the  work,  or  as  to  the  date  of  the  contract,--^ 
which  are  not  required  by  the  statute ;  ---  or  where  there  is 
a  misstatement  of  a  fact  not  material  in  the  claim  of  lien, 

"»  See  §§  375  et  seq.,  and  §§  399  et  seq.,  ante. 

220  "  Unnecessary    Statements,"    §§  374    et    seq.,    ante. 

Oregon.     Chamberlain  v.  Hibbard,  26  Oreg.  428,  38  Pac.  Rep.  437. 

2=1  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  109  Cal.  566,  568,  42  Pac.  Rep. 
154. 

2=2  Slight  V.   Patton,   96  Cal.   384,   386,   31   Pac.  Rep.  .248. 

Colorado.  A  recital  in  a  claim  of  the  date  of  completion  of  a  build- 
ing is  not  conclusive  on  the  claimant,  since  the  law  does  not  require 
the  date  to  be  inserted  therein;  althovigh  it  may  be  of  some  value  as 
against  his  declarations,  yet  it  is  not,  in.  a  legal  sense,  so  far  con- 
clusive that  he  may  not  prove  the  actual  time:  Burleigh  B.  Co.  v. 
Merchant  B.  &  B.  Co.,  13  Colo.  App.  455,  59  Pac.  Rep.  83,  86  (under 
act  of   1893). 


367  CONTENTS    OP    CLAIM    OF    LIEN.  §  414 

as  of  a  sum  due  for  a  certain  reason,  which  is  wrong,  when 
the  sum  is  actually  due.^-^ 

§  414.  Same.  Other  illustrations.  Subject  to  the  general 
rule  as  to  good  faith  and  intervening  rights  of  bona  fide 
dealers  with  the  property,  the  following  illustrations  are 
given. 

Contract.  Where  the  contract  as  to  one  item  was  im- 
properly set  forth  in  the  claim  of  lien,  the  lien  is  not  void 
as  to  the  other  items  concerning  which  the  contract  was 
correctly  stated;  otherwise  the  purpose  and  objects  of  the 
lien  law  would  be  defeated.--* 

Names.  Where  the  statute  required  the  claimant  to  state 
from  whom  the  debt  was  due,  it  was  held  that  a  mistake 
in  the  name  of  the  contractor  would  not  vitiate  the  lien,  if 
it  appeared  that  the  owner  was  not  harmed  by  the  error.--'' 
An  honest  mistake  as  to  ownership,  where  the  claimant  was 
justified  in  assuming,  for  instance,  that  the  husband  was  the 
reputed  owner,  will  not,  alone,  vitiate  the  lien.^^® 

Amount  due.  A  claim  good  in  other  respects  will  not  be 
rejected,  merely  because  the  amount  claimed  is  somewhat 
larger  than  can  be  sustained  by  the  proofs,  unless  it  be 
so  wilfully  false  as  to  amount  to  a  fraud ;  -^'  and,  of  course, 
where  an  overstatement  of  the  amount  due  on  a  claim  of 
lien  is  upon  its  face  a  mere  clerical  error,  it  will  not  invali- 
date the  lien.^^^ 

"3  Harmon  v.  Ashmead,  68  Cal.  321,  323,  9  Pac.  Rep.  183. 

^  Linck  V.  Johnson,   134  Cal.  xix,  66  Pac.  Rep.   674. 

"5  Harmon  v.  San  Francisco  &  S.  R.  R.  Co.,  86  Cal.  617,  619,  25 
Pac.  Rep.   124    (dictum);   but  citing-  Putnam  v.   Ross,  46  Mo.   337. 

See  JeweU  v.  McKay,  82  Cal.  144,  145,  23  Pac.  Rep.  139  (the  name 
of  the  purchaser  or  employer  must  be  given). 

See   "Names,"   §§379   et  seq.,  ante. 

Colnriulo.  Mistake  not  tending  to  deceive  persons  interested  does 
not  vitiate:  Cannon  v.  Williams,  14  Colo.  21,  23  Pac.  Rep.  456  (1883); 
Bitter  v.  Mouat  L.  &  I.  Co.,  10  Colo.  App.  307,  51  Pac.  Rep.  519    (1883). 

=2«  Santa  Cruz  R.  P.  Co.  v.  Lyons,  133  Cal.  114,  119,  65  Pac.  Rep.  329. 

"'  Continental  B.  &  L.  Assoc,  v.  Hutton,  144  Cal.  609,  611,  78  Pac. 
Rep.  21:  Snell  v.  Payne,   115  Cal.  218,   222,  46  Pac.  Rep.   1069. 

See   "Demand,"    §§375   et   seq.,   ante. 

==•''  Snell  V.  Payne,  115  Cal.  218,  46  Pac.  Rep.  1069,  the  court  furtlier 
saying,  "  At  most,  it  can  only  postpone  it  to  the  other  liens  " 
(dictum);  but   no   authority    which    supports   the  proposition    is   given. 

See  "Priorities,"  §786,  post;  "  Amendment,"  §  415,  post ;  "Forfeiture," 
§§  632,    633,  post. 

Oregon.  See  Harrisburg  L,  Co.  v.  Washburn,  29  Greg.  150,  170, 
44    Pac.    Rep.    390. 


§  415  mechanics'  liens.  368 

Non-lienable  items.  Where  the  claim  contains  non-lien- 
able  items  that  cannot  be  segregated  from  the  general 
aggregate,  the  claim  cannot  be  sustained;-^"  but,  as  already 
pointed  out,-^°  when  such  items  can  be  separated,  and  the 
claimant  has  acted  in  good  faith,  the  lien  will  be  upheld, 
even  without  the  aid  of  such  a  provision  as  section  twelve 
hundred  and  three  a  of  the  Code  of  Civil  Procedure.^^^ 

§  415.  Amendment  of  claim.  Without  statutory  permis- 
sion, a  claim  of  lien  is  not  an  instrument  generally  susceptible 
of  reformation, ^^^  or  of  amendment  after  filing. ^^^ 

^^  McClain  v.  Hutton,  131  Cal.  132,  141,  61  Pac.  Rep.  273,  63  Id.  182, 
622. 

As  to  effect  on  right  to  lien  o£  non-Ilenable  items,  see  4  Am.  &  Eng. 
Ann.   Cas.   836. 

Arizona.  Where  it  appears  that  some  of  the  articles  were  not 
furnished  within  the  statutory  time  before  the  filing  of  the  claim, 
the  lien  will  be  sustained  as  to  the  items  within  the  statutory  time, 
in  the  absence  of  fraud  or  bad  faith,  and  when  the  claimant  believed 
himself  to  be  entitled  to  a  lien  for  all  of  the  items:  W^olfiey  v.  Hughes 
(Ariz.),    71   Pac.   Rep.   951. 

^^'Ilen  it  is  impossible  from  complaint  and  account  to  determine 
what  part  of  the  account  charged  is  secured  by  a  lien,  and  what  part 
is  non-lienable  or  unsecured,  the  court  will  not  permit  parol  evidence 
to  be  introduced  to  cure  the  defect,  and  therefore  the  entire  lien  is 
lost:    Wolfley  v.  Hughes   (Ariz.),   71  Pac.  Rep.  951. 

Nevada.  Claiming  more  than  actually  due,  by  mistake,  without 
fraud  or  wrongful  intent,  does  not  vitiate  claim:  Salt  Lake  H.  Co.  v. 
Chainman  M.  &  E.  Co.,  137  Fed.  Rep.   632,  638. 

Oregon.  Honest  mistake  as  to  amount:  See  Cooper  M.  Co.  v. 
Delahunt,  36  Oreg.  402,  60  Pac.  Rep.  1,  51  Id.  649.  If  he  knows  the 
statement  is  untrue,  or  could  have  so  known  by  the  exercise  of 
reasonable  diligence,  the  lien  fails:  Id.  See  Barton  v.  Rose  (Oreg.), 
85    Pac.   Rep.    1009. 

Utali.  Honest  mistake  in  statement  of  amount  due  will  not  vitiate 
claim:    Culmer  v.  Caine,   22   Utah    216,   61   Pac.   Rep.    1008,    1010. 

Wasliington.  Non-lienable  items  that  can  be  segregated  when 
included  in  the  claim  do  not  establish  fraud  nor  destroy  lien,  as  they 
may  have  been  included  by  mistake  and  under  the  honest  belief  that 
they  were  lienable;  and,  under  a  joint  lien,  are  to  be  deducted  pro 
rata  from  liens  on  several  houses,  as  segregated:  Powell  v.  Nolan,  27 
Wash.  318,  67  Pac.  Rep.  712,  720.  See  Dexter  v.  Olsen,  40  Wash.  199,  82 
Pac.  Rep.   286;  Robinson  v.  Brooks,  31  Wash.  60,  71  Pac.  Rep.   721. 

-■"'  See  §  377,  ante. 

"»  Kerr's  Cyc.  Code  Civ.  Proc,  §  1203a. 

=32  Fernandez  v.  Burleson,  110  Cal.  164,  167,  42  Pac.  Rep.  566,  52  Am. 
St.  Rep.   75;   Goss  v.  Strelitz,  54  Cal.   640,   644. 

See  §  406,  ante. 

=33  Madera  F.  &  T.  Co.  v.  Kendall,  120  Cal.  182,  183,  52  Pac.  Rep. 
304,   65  Am.   St.   Rep.    117. 

Colorado.  Ineffectual  amendment  of  claim:  See  Perkins  v.  Boyd 
(Colo.),    86    Pac.    Rep.    1045. 


H 


369  CONTENTS   OP    CLAIM    OF    LIEN.  §  415 

Certain  clerical  errors,  however,  may  be  regarded  as  cor- 
rected, when  they  are  apparent  upon  the  face  of  the  claim. 
Thus  where  it  appears  by  the  complaint  that,  in  his  claim 
as  filed,  the  claimant  stated  the  name  of  the  person  by  whom 
he  was  "  occupied,"  the  court  construed  the  term  to  mean 
"  employed."  -^*  Likewise  a  statement  in  the  verification, 
that  the  affiant  Avas  the  agent  of  "  plaintiff,"  was  construed 
to  mean  the  agent  of  "  claimant."  ~^^ 

No  aider  by  averment  in  complaint.  A  failure  to  state 
an  essential  fact  in  the  claim,  such  as  the  name  of  the  person 
to  whom  the  materials  were  furnished,  is  not  aided  by  the 
averment  of  the  fact  in  the  complaint,  as  the  claim  which 
is  filed  for  record  must  be  complete  in  itself  at  that  time,  in 
order  to  authorize  its  enforcement.-^® 

Nevada.  Where  the  notice  filed  contained  an  otherwise  suflicient 
description,  a  chang-e  in  the  number  of  the  lot.  made  on  the  state- 
ment in  the  recorder's  office  before  the  expiration  of  the  time  within 
which  to  file  the  same,  made  without  fraud,  does  not  vitiate  it: 
Hunter    v.    Truckee    Lodge,    14    Nev.    24,    30. 

New  Mexico.  Verification  cannot  be  amended:  Minor  v.  Marshall, 
6  N.  M.   194.   198,   27  Pac.   Rep.   481. 

Oklahoma.  Under  a  statute  (Stats.  1893,  §  4531)  allowing  amend- 
ments, an  amendment  to  the  verification  was  permitted:  El  Reno  E. 
L.  &  T.  Co.  V.  Jennison,  5  Okl.  759.  763,  50  Pac.  Rep.  144;  the  court 
saying,  "We  hold  the  proper  construction  of  this  act  to  be  that  the 
mechanic's  lien  may  be  amended  in  any  matter  where,  for  similar 
reasons,  a  pleading  could  be  amended":  Blanshard  v.  Schwartz,  7 
Okl.   23,   54  Pac.   Rep.   303,   306. 

Oregon.  The  court  cannot  change  the  language  used  in  the  claim, 
by  eliminating  or  substituting  words,  or  by  supplying  omissions 
therefrom:     Barton   v.   Rose    (Greg.),    85    Pac.    Rep.    1009. 

Washington.  Am.endment  allowed  as  in  the  case  of  pleadings,  so 
long  as  interests  of  third  parties  may  not  be  affected  (under  Ballin- 
ger's  Ann.  Codes  and  Stats.,  §5904):  Olson  v.  Snake  R.  V.  R.  Co.,  22 
W'ash.  139,  60  Pac.  Rep.  156;  Greene  v.  Finnell,  22  Wash.  186.  00  Pac. 
Rep.  144;  Dexter  v.  Olsen,  40  W^ash.  199,  82  Pac.  Rep.  286,  287. 

Under  this  provision  an  amendment  was  allowed  by  adding  the 
place  of  residence  of  the  notary  to  the  verification,  and  the  third 
parties  whose  interests  are  not  to  be  affected  are  only  those  wlio 
hav«  acquired  some  interest  subsequent  to  the  filing  of  the  lien 
notice,  and  the  clause  has  no  reference  to  those  whose  relation  to 
the  property  had  not  been  changed  since  sucli  filing:  Sullivan  v. 
Treen,  13  Wash.   261,  43  Pac.  Rep.   38. 

Under  a  previous  statute  the  affidavit  could  not  be  amended  by 
affixing  the  seal  of  the  notary  thereto:  Stetson  &  Post  M.  Co.  v. 
McDonald,  5  Wash.  496,  32  Pac.  Rep.  108. 

™  McDonald  v.  Backus.  45  Cal.  262,  264.  See  "Construction,"  §371. 
ante;  "Notice,"  §§568  et  seq.,  post. 

*•■«  Parke  &  Lacy  Co.  v.  Inter  Nos  O.  &  D.  Co.,  147  Cal.  490,  494,  82 
Pac.  Rep.   51. 

^'  Madera   F.    &   T.   Co.    v.    Kendall,    120   Cal.    182,    183,    52   Pac.    Rep. 
304.   65  Am.  St.   Rep.    117. 
Mech.  Liens  —  24 


§416  mechanics'  liens.  370 


CHAPTER  XXI. 

CLAIM   OF  LIEN    (COxXTINUED).     FILING   CLAIM. 

§  416.  Filing  claim.     In  general. 

§  417.  Statutory  provisions. 

§  418.  Purpose  of  provision  requiring  claims  to  be  filed  within  a 
certain  time. 

§  419.  Same.     In  case  of  void  contract. 

§  420.  Place  of  filing  claim  for  record. 

§  421.  Original  contract  void.     Necessity  of  filing  claim. 

§  422.  Time  of  filing  claim.     In  general. 

§  423.  Same.     Computation  of  time. 

§  424.  Time  of  filing,  when  not  fixed  by  statute. 

§  425.  Notice  of  completion  or  cessation  of  work.  Statutory  provis- 
ion. 

§  426.  Same.     Purpose  and  scope  of  provision. 

§  427.  Same.     Failure  of  owner  to  file  notice. 

§  428.  Same.     In  case  of  structures. 

§  429.  Same.     General  rule. 

§  430.  Time  of  filing  claim.     Certificate  of  architect. 

§  431.  Same.     Substantial  or  actual  completion. 

§  432.  Same.     Abandonment  of  the  w^ork. 

§  433.  Same.     Thirty  days'  cessation  from  labor. 

§  434.  Same.  Agreements  affecting  time  of  filing  claims.  Giving 
credit. 

§  435.  Same.     Void  contract. 

§  436.  Same.     Mines  and  mining  claims. 

§  437.  Same.     Grading,  etc. 

§  416.  Filing  claim.  In  general.^  In  several  jurisdictions 
the  statute  requires  that  a  notice  of  intention  to  file  a  claim 
of  lien  shall  be  filed,  or  a  notice  that  snch  a  claim  has  been 

>  As  to  time  when  statute  of  limitations  begins  to  run  agrainst 
mechanic's  lien,  see  note  7  Am.  &  Eiig.  Ann.  Cas.   947. 

Time  for  tiling  claims,  under  act  of  March  27,  1897,  for  work  on 
public  structures:  See  French  v.  Powell,  135  Cal.  636,  639,  68  Pac. 
Rep.    92. 

AVashlngton.  See.  generally,  Lee  v.  Kimball  (Wa^h.),  88  Pac.  Rep. 
1121. 

Material-man  failing  to  file  notice  with  school  board:  See  Crane 
Co.  V.  JEtna  I.  Co.    (Wash.),  86  Pac.  Rep.  849. 

Claim  must  be  filed  under  act  of  189.S.  ch.  xxiv,  p.  32,  §  1,  even  thoug'h 
the  railroad  company  has  filed  no  bond:  and  no  recovery  can  be  had 
on  such  bond  after  the  filing:  of  such  claim:  Laidlaw  v.  Portland  V. 
&  Y.  R.  Co.,  42  Wash.  292,  84  Pac.  Rep.  855. 


371  FILING    CL.UM    OF    LIEN.  §  416 

filed  shall  be  served  on  the  owner ;^  but  the  statutes  gen- 
erally do  not  require  such  notice.  This  chapter  treats 
particularly  of  the  tiling  of  the  claim  of  lien;  the  subject 
of  service  of  notice  on  the  owner  to  intercept  paj'ments  in  the 
nature  of  a  garnishment  being  left  for  later  consideration.^ 

It  has  already  been  shown  that  the  statutory  provision 
as  to  filing  the  claim  of  lien  must  be  complied  with,*  and 
in  what  cases  such  claim  is  required  to  be  filed.  It  has  also 
been  shown  that  the  object  of  filing  the  claim  is :  1.  To  perfect 
the  lien;  and  2.  To  give  notice  by  public  record,  for  the 
protection  of  those  who  may  deal  (a)  with  the  owner  of  the 
property,  or  (b)  with  the  land  itself;  and  further,  3.  To 
inform  the  owner  of  claims  of  lien-holders." 

The  inchoate  right  to  a  lien  ceases  to  fexist  after  the 
statutory  period  for  filing  the  claim  of  lien  has  passed." 

^  Colorado.  Notice  of  intention  to  file  claim  must  be  given,  the 
statute  specifying  no  particular  form,  and  an  error  in  the  address  is 
immaterial:  Colorado  I.  W.  v.  Taylor,  12  Colo.  App.  451,  55  Pac.  Rep. 
94:;,    945. 

Oklahoma.  The  notice  of  filing  a  mechanic's  lien  is  not  required 
to  be  served  by  an  officer  or  any  special  individual,  and  the  rules 
with  reference  to  the  return  of  an  officer  to  a  writ,  or  the  service, 
do  not  apply:  Ryndak  v.  Seawell,  13  Okl.  737,  76  Pac.  Rep.  170  (under 
Code  Civ.  Proc,   §  1963). 

The  iirinciiial  contractor  is  not  required  to  serve  notice  of  the 
filing  of  his  lien,  under  §  6L'l  of  the  Code  of  Civil  Procedure,  relating  to 
liens  of  subcontractors:  Ryndak  v.  Seawell,  13  Okl.  737,  76  Pac.  Rep.  170. 
Utali.  The  subcontractor  has  forty  days  from  the  time  of  furnisli- 
ing  the  last  materials  in  which  to  file  a  notice  of  intention  to  claim  a 
lien,  and  the  original  contractor  has  sixty  days  from  the  time  of  tlie 
completion  of  his  contract:  Cahoon  v.  Fortune  M.  &  M.  Co.,  26  Utah 
86,  72  Pac.  Rep.  437  (under  Rev.  Stats.,  §1386);  Sanford  v.  Kunkel, 
30  Utah  379,  85  Pac.  Rep.  363,  365,  1012  (under  Rev.  Stats.  1898,  §  1386); 
Culmer  v.  Caine,  22  Utah  216,  61  Pac.  Rep.  1008,  1010  (under  Sess. 
Laws  1890). 

"  See  '■  Notice  to  Owner,"  §§  547   et  seq.,  post. 

'  See  J§  354  et  seq.,  ante;  and  see  Meyer  v.  Quiggle,  140  Cal.  495, 
497,   74  Pac.   Rep.   40. 

•■  See  §§  365,   376,   388,  401,  ante,  and  §  418,  post. 

In  Mars  v.  McKay,  14  Cal.  127,  128  (1856),  decided  under  a  statute 
which  required  the  filing  of  an  "account,"  with  a  description  of  the 
property,  etc.,  the  court  seems  to  allude  to  the  "account"  as  being 
hied  for  the  purpose  only   of  giving  notice. 

Washington.  Johnston  v.  Harrington,  5  Wash.  73,  79,  31  Pac.  Rep. 
316;  Gates  v.  Brown,  1  Wash.  470,  474,  25  Pac.  Rep.  914;  Cowie  v. 
Ahrenstedt,   1  Wash.   416,   418,   25   Pac.   Rep.   458. 

«  Provident  M.  B.  L.  Assoc,  v.  Shaffer,  2  Cal.  App.  216,  83  Pac.  Rep. 
274;  but  see  Hughes  v.  Hoover  (Cal.,  Feb.  23,  1906),  84  Pac.  Rep.  681. 
Vtali.  The  lien  is  not  created  until  the  claim  is  filed,  and  until  then 
It  is  inchoate,  but  relates  to  the  time  of  commencing  the  work: 
Elwell  v.  Morrow,  28  Utah  278,  78  Pac.  Rep.  605  (under  Rev.  Stats. 
1898.   i  1386). 


§§417,418  mechanics'  liens.  372 

§  417.  Statutory  provisions.  The  California  statute  ''  pro- 
vides: "  [A]  Every  original  contractor,  [1]  at  any  time 
after  the  completion  of  his  contract,  and  [2]  until  the 
expiration  of  sixty  days  after  the  filing  of  said  notice  of 
completion  or  notice  of  cessation  of  labor  by  the  owner,*  and 

[B]  every  person,  save  the  original  contractor,  claiming 
the  benefit  of  this  chapter,  [1]  at  any  time  after  the  com- 
pletion of  any  building,  improvement,  or  structure,  or  of 
the  alteration,  addition  to,  or  repair. thereof,  and  [2]  until 
the  expiration  of  thirty  days  after  the  filing  of  said  notice 
of  completion  or  cessation,  by  said  owner,  or  [3]  within 
thirty  days  after  the  performance  of  any  labor  in  a  mining 
claim,  must  file  for  record  with  the  county  recorder  of  the 
county,  or  city  and  county,  in  which  such  property  or  some 
part  thereof  is  situated,  a  claim;  .  .  .  provided,  however, 

[C]  that  in  any  event  all  claims  of  lien  must  be  filed  within 
ninety  days  after  the  completion  of  said  building,  improve- 
ment, or  structure,  or  the  alteration,  addition  to,  or  repair 
thereof.  Any  trivial  imperfection  in  the  said  work,  or  in  the 
construction  of  any  building,  improvement,  or  structure, 
or  of  the  alteration,  addition  to,  or  repair  thereof,  shall 
not  be  deemed  such  a  lack  of  completion  as  to  prevent  the 
filing  of  any  lien;  and  in  all  cases  the  occupation  or  use  of 
a  building,  improvement,  or  structure,  by  the  owner,  or  his 
representative,  or  the  acceptance  by  said  owner  or  his  agent 
of  said  building,  improvement,  or  structure,  and  cessation 
from  labor  for  thirty  days  upon  any  contract  or  upon  any 
building,  improvement,  or  structure,  or  the  alteration,  addi- 
tion to,  or  repair  thereof,  shall  be  deemed  equivalent  to  a 
completion  thereof  for  all  the  purposes  of  this  chapter." 

§  418.  Purpose  of  provision  requiring  claims  to  be  filed 
within  a  certain  time.  Under  the  contract  between  the 
owner   and  the   contractor,   the   owner   agrees  to   pay  the 

'  Kerr's  Cyc.  Code  Civ.  Proc,  §  1187;  in  effect,  sixty  days  from 
March    27,    1897. 

As  to  what  constitutes  completion,  see,  generally,  §§  334  et  seq., 
ante;  "Notice  of  Completion,"  §§  425  et  seq.,  post. 

*  As  to  provi.siou  relating  to  filing  of  notice  of  completion  or  ces- 
sation of  labor,  see  S§  425   et  seq.,  post. 


373  FILING    CLAIM    OF    LIEX.  §  418 

contractor  a  certain  sum  for  constructing  the  building,  and 
this  sum  is  a  fund  which  maj^  be  held,  under  the  statute, 
for  the  payment,  so  far  as  it  will  go,  of  all  the  claims  of  all 
the  various  subcontractors,  for  work  and  materials  furnished 
by  them  to  the  contractor,  who  is  the  principal  and  head 
of  all;  and  all  the  parties  entitled  to  payment  or  contribution 
out  of  this  fund  should  be  able  to  reach  the  fund  and  get 
their  proportionate  shares  thereof  at  the  same  time  or 
within  the  same  period  of  time.  Besides,  one  subcontractor 
ought  not  to  be  able  to  reach  this  fund  and  appropriate  it  to 
the  extent  of  his  claim  before  another  subcontractor  could 
reach  it;  for  if  the  fund  should  not  be  sufficient  to  pay  the 
claims  of  all  the  subcontractors,  then  each  subcontractor 
should  be  paid  only  a  proportionate  share  thereof.  Now, 
the  amount  of  all  the  claims  of  all  the  subcontractors  can 
be  ascertained  only  after  all  the  work  and  materials  have 
been  furnished  and  after  the  building  has  been  completed, 
so  far  as  the  contractor  is  required  to  complete  the  same ;  for 
the  whole  of  the  work  may  in  fact  be  done  by  subcontrac- 
tors only,  or  the  last  item  of  work  performed  or  materials 
furnished  may  be  performed  or  furnished  by  a  subcon- 
tractor. The  building,  in  such  a  case,  would  be  completed 
by  a  subcontractor;  and  the  subcontractor  completing  the 
building,  or  furnishing  the  last  item  of  work  or  material 
therefor,  is  entitled  to  his  proportionate  share  of  the  general 
fund  equally  with  the  subcontractor  who  furnished  the  first 
item  of  work  or  material,  or  any  intermediate  portion  there- 
of. Of  course,  when  the  contractor  has  furnished,  through 
himself,  or  his  subcontractors,  all  the  work  and  material 
which  he  has  agreed  to  furnish,  then  the  building  is  com- 
pleted, so  far  as  he  is  concerned,  and  is  also  completed  so  far 
as  all  the  subcontractors  under  him  are  concerned;  and  the 
contractor  and  each  of  the  subcontractors  may  then  file  their 
respective  claims  of  liens,  and  each  will  then  become  entitled 
to  his  proportionate  share  of  the  fund. 

It  is  obvious  that  if  a  subcontractor  may  file  his  claim 
before  the  completion  of  the  building  at  all,  it  may  very  well 
happen  that  the  building  may  not  be  completed  until  more 
than   ninety   days   after   the    claini   is   filed,   and   since    the 


§  419  mechanics'  liens.  374 

statute  "  provides  that  no  lien  shall  be  binding  for  a  longer 
period  than  ninety  days  after  the  same  has  been  filed,  unless 
proceedings  be  commenced  in  a  proper  court  within  that  time 
to  enforce  the  same,  it  follows  that,  under  a  different  con- 
struction of  section  eleven  hundred  and  eighty-seven,  a  suit 
might  be  maintained  to  enforce  the  lien  of  a  subcontractor 
before  the  completion  of  the  original  contract,  when  valid. 
This  would  not  only  be  to  give  one  subcontractor  a  prefer- 
ence over  another,  not  allowed  by  the  statute,  but  might  sub- 
ject the  owner  to  suit,  and  possibly  his  property  to  sale, 
although  strictly  conforming  to  his  contract.  In  further 
harmony  with  the  conclusion  that  section  eleven  hundred  and 
eighty-seven  ^°  fixes  a  common  starting-point  for  all  subcon- 
tractors under  the  same  original  contractor,  is  section  eleven 
hundred  and  ninety-five,^^  which  provides  that  "  any  number 
of  persons  claiming  liens  may  join  in  the  same  action,  and 
when  separate  actions  are  commenced,  the  court  may  con- 
solidate them."  ^^ 

§  419.  Same.  In  case  of  void  contract.  As  the  owner 
is  liable  for  the  value  of  all  the  labor  done  and  materials 
furnished  in  the  construction  of  a  building,  and  as  suits  to 
enforce  liens  therefor  must  be  commenced  within  ninety 
days  after  the  filing  of  the  claim  of  lien,  there  is  a  manifest 
propriety,  where  there  is  no  valid  contract  for  any  of  the 
work,  in  requiring  that  the  building  shall  be  completed  be- 
fore any  claims  of  lien  are  filed,  in  order  that  they  may  all 
be  adjusted  in  a  single  action.  If  claims  could  be  filed 
prior  to  the  completion  of  the  building,  it  may  happen  that 
it  would  be  necessary  to  institute  actions  for  their  fore- 
closure before  the  building  was  completed,  and  while  other 
laborers  who  would  be  entitled  to  have  a  lien  thereon  would 
be  precluded  not  only  from  filing  their  claim  of  lien,  but 
from  seeking  its  enforcement.^^ 

3  Kerr's   Cyc.  Code  Civ.  Proc,   §  1190. 

"  Kerr's   Cyc.   Code   Civ.   Proc,   §  1187. 

"  Kerr's   Cyc.  Code  Civ.  Proc,   §  1195. 

«  Roylance  v.  San  Luis  Hotel  Co.,  74  Cal.  273,  277,  20  Pac.  Rep.  573, 
quoting  and  approving  Perry  v.  Brainard  (Cal.,  Dec.  19,  1885),  8  Pac. 
Rep.    882. 

13  Davis  V.  MacDonough.   109  Cal.   547,   550,   42  Pac.  Rep.  450. 

Nevada.  See,  however,  Hunter  v.  Truckee  Lodge,  14  Nev.  24,  28 
(1875). 


375  FILING    CLAIM    OF    LIEN.  §§  -120,  421 

§  420.  Place  of  filing  claim  for  record.^*  The  claim  must 
be  filed  "  for  record  witli  tlie  county  recorder  of  the  county, 
or  city  and  county,  in  which  such  property  or  some  part 
thereof  is  situated."  ^^ 

In  case  of  railroad.  The  statute  ^^  does  not  require  the 
claim  of  lien  to  be  filed  for  record  in  each  county  in  which 
a  railroad  is  situated;  and  where  it  lies  in  two  counties, 
the  claim  may  be  filed  in  either  county,  as  the  courts  have 
no  power  to  amend  the  statute  by  requiring  the  filing 
of  a  claim  in  every  county  where  any  part  of  the  property 
may  be  situated/' 

Removal  of  claim  of  lien  from  recorder's  office.  As  the 
claim  is  made  a  matter  of  record,  and  the  removal  of  the 
claim  from  the  recorder's  office  does  not  defeat  any  object 
for  which  the  claim  is  required  to  be  filed,  such  removal 
does  not  affect  the  lien.^^ 

§  421.     Original  contract  void.     Necessity  of  filing  claim. 

If  the  statutory  original  contract  is  void,   in  order  that  a 

"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1189,  which  provides:  "The  recorder 
must  record  the  claim  in  a  book  kept  by  him  for  that  purpose,  which 
record  must  be  indexed  as  deeds  and  other  conveyances  are  required 
by  law  to  be  indexed,  and  for  which  he  may  receive  the  .same  fees  as 
are  allowed  by  law  for  recording  deeds  and  other  instruments." 

Kerr's  Cyc.  Pol.  Code,  §  4:i3(>,  .siibd.  16.  By  this  subdivision  the 
county  recorder  is  required  to  keep  "an  index  of  notices  of  meclianics' 
liens,  labeled  '  Mechanics'  liens,'  each  page  divided  into  three  columns, 
headed  respectively,  '  Parties  claiming  liens,'  '  Against  whom  claimed,' 
'Notices  when  and  where  recorded.'"  The  same  provision  is  found  in 
§  121  of  the  County  Government  Act  (Stats,  and  Amdts.,  p.  402,  Hen- 
ning's  General  LaAvs,  p.   221). 

It  is  by  this  index  that  a  subsequent  dealer  with  the  property  is 
to  be  guided  in  ascertaining  whether  there  are  any  encumbrances 
upon  the  owner's  title:  Corbett  v.  Chambers,  109  Cal.  178,  182,  41  Pac. 
Rep.    873. 

Washington.  See  Garneau  v.  Port  Blakeley  M.  Co.,  8  Wash.  467, 
36   Pac.   Rep.   463. 

^  Kerr's   Cyc.   Code   Civ.   Proc,   §  1187. 

le   Kerr's   Cyc.   Code   Civ.   Proc,   §  1187. 

"  Bringhai.x  v.  Knox,  127  Cal.  40,  44,  59  Pac.  Rep.  198. 

Compare:    "Filing   Contract,"    SS  294   et   seq.,   ante. 

As  to  nieelianics'  lieus  on  railroads,  see  note  7  Am.  &  Eng.  Ann.  Cas. 
629-672. 

Colorado.  But  where  the  statute  required  the  notice  to  be  filed  in 
the  county  where  the  property  is  situate,  the  notice  must  be  filed  in 
every  county  wherein  the  property  is  situate:  Arkansas  River  L.  R. 
&  C.  Co.   V.  Flinn,   3  Colo.  App.   381,   383    (canal-railroad),    (1889). 

"•  Mars  V.  McKay,   14  Cal.   127,   128   (1856). 

Wyoming.      But    see    Fein    v.    Davis,    2    W^yo.    118    (1871). 


§  '122  mechanics'  liens.  376 

laborer  or  material-man  may  preserve  and  enforce  the  lien 
provided  for  him  by  the  statute,  his  claim  therefor  must  be 
filed  in  the  recorder's  office  with  as  much  specification,  and 
within  the  same  time,  as  if  he  had  himself  made  a  contract 
for  his  labor  or  material  directly  with  the  owner/^ 

§  422.  Time  of  filing  claim.  In  general.  Unless  the 
claimant  file  his  claim  within  the  time  allowed  by  the  stat- 
ute, his  lien  is  lost ;  ^°  and,  on  the  other  hand,  the  filing  of 

"  WiUamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co.,  94  Cal. 
229,    237,    29    Pac.   Rep.    629. 

2"  Walker  v.  Hauss-Hljo,  1  Cal.  184,  186;  WeithofE  v.  Murray,  76 
Cal.  508,  510,  18  Pac.  Rep.  435;  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  106 
Cal.  224,  232,  39  Pac.  Rep.  758;  Southern  Cal.  L.  Co.  v.  Schmitt,  74  Cal. 
625,  626,  16  Pac.  Rep.  516;  Joost  v.  Sullivan,  111  Cal.  286,  292,  43  Pac. 
Rep.  896;  Santa  Clara  Valley  M.  &  L.  Co.  v.  Williams  (Cal.,  Dec.  8, 
1892),  31  Pac.  Rep.  1128;  Harmon  v.  San  Francisco  &  S.  R.  R.  Co.,  105 
Cal.  184,   188,  38  Pac.  Rep.   632. 

Colorado.  Changes  insisted  upon  by  the  owner  to  correct  work 
asserted  not  to  liave  been  done  in  accordance  with  the  contract  are 
not  to  be  regarded  as  immaterial,  but  as  necessary  parts  of  the  con- 
tract, and  the  claim  may  be  filed  within  the  statutory  period  after 
such  changes  are  made:  Stidger  v.  McPhee,  15  Colo.  App.  252,  62  Pac. 
Rep.   332. 

Montana.  Alesina  v.  Stock,  8  Mont.  416,  20  Pac.  Rep.  642;  Alvord  v. 
Hendrie,   2   Mont.    115;   Davis  v.  Alvord,   94   U.  S.   545,  bk.   24  L.  ed.   283. 

Furnishing  of  a  .small  last  item  as  a  subterfuge  for  filing  a  claim, 
when  the  time  had  really  expired,  does  not  bring  the  claim  within 
the  statutory  time:  See  Aldritt  v.  Panton,  17  Mont.  187,  42  Pac. 
Rep.   767. 

Oregon.  Forest  Grove  D.  &  L.  Co.  v.  McPherson,  31  Oreg.  586,  46 
Pac.    Rep.    884. 

Furuisliiug  of  additional  articles  by  agreement  with  the  owner, 
after  the  expiration  of  the  time  limited  for  filing  the  lien,  for  the 
purpose  of  reviving  the  right,  will  not  have  that  effect  as  against  a 
mortgagee  who  is  not  a  party  to  the  transaction,  even  if  such  agree- 
ment is  valid  between  the  claimant  and  the  owner:  Inman  v.  Hen- 
derson, 29  Oreg.  116,  45  Pac.  Rep.  300.  See  Curtis  v.  Sestanovich,  26 
Oreg.  107,  37  Pac.  Rep.  67. 

Where  extra  >vork  is  done  or  materials  furnished  by  the  contractor, 
during  the  performance  of  his  agreement,  as  a  part  of  or  in  further- 
ance of  the  same  general  object,  it  will  be  deemed,  for  the  purpose  of 
mechanics'  liens,  a  part  of  the  original  contract,  and  the  time  within 
which  to  file  a  claim  for  the  amount  due  on  the  contract  and  the 
extra  work  will  commence  to  run  from  the  date  of  the  completion  of 
the  work  as  a  whole:  Hobklrk  v.  Portland  B.  Club,  44  Oreg.  605,  76 
Pac.    Rep.    776. 

As  to  running  account,  and  %vhen  mechanic's  lien  inust  be  filed  on, 
see   2   Am.   &  Eng.  Ann.  Cas.   685;   7   Am.   &   Bng.   Ann.   Cas.   947. 

Utah.  See  Salt  Lake  L.  Co.  v.  Ibex  M.  &  S.  Co.,  15  Utah  440,  49 
Pac.  Rep.  832;  Culmer  v.  Clift,  14  Utah  286,  47  Pac.  Rep.  85;  Morrison 
V.  Carey-Lombard  Co.,  9  Utah  70,  33  Pac-  Rep.  238;  Carey-Lombard 
Co.  V.  Partridge,  10  Utah  322,  37  Pac.  Rep.  572;  Eclipse  S.  M.  Co.  v. 
Nichols,  1  Utah   252   (1869). 


377  FILING   CLAIM    OF    LIEN.  §  422 

the  claim  of  lien  before  the  time  authorized  by  statute 
is  premature,  and  no  right  to  enforce  a  lien  will  be  thereby- 
acquired.^^ 

Delivery  of  additional  materials.  Effect  on  right.  When  the  time 
for  filing  a  claim  for  materials  has  expired,  a  delivery  of  additional 
materials,  not  contemplated  in  the  original  order,  and  not  needed 
nor  used,  cannot  give  nor  revive  a  right  to  file  a  claim  for  a  balance 
due  on  all  the  materials,  including  those  furnished  under  the  first 
order,  and  thus  defeat  a  lien  already  foreclosed:  Cahoon  v.  Fortune 
M.  &  M.  Co.,  26  Utah  86,  72  Pac.  Rep.  437  (on  mine,  under  Rev.  Stats. 
1898,    S  1386). 

Contractor  cannot  keep  alive  or  revive  hi.s  right  to  file  a  lien  by 
tacking  on  or  adding  to  his  account  by  additional  orders  for  labor  or 
materials  long  after  the  time  for  filing  his  claim  has  expired:  Cahoon 
V.  Fortune  M.   &  M.  Co.,   26  Utah   86,   72  Pac.  Rep.  437    (in  mine). 

Washington.  Seattle  &  W.  W.  R.  Co.  v.  Ah  Kow,  2  Wash.  Ter.  36, 
3  Pac.  Rep.  188. 

Time  of  tiling  lien.  Effect  of  superintendent's  certificate  of  comple- 
tion. Within  ninety  days  from  cessation  of  performance  or  furnishing, 
under  Ballinger's  Ann.  Codes,  §  5904,  notwithstanding  previous  cer- 
tificate of  superintendent  that  the  structure  is  finished:  Washington 
B.  Co.  V.  Land  &  R.  Imp.  Co.,  12  Wash.  272,  40  Pac.  Rep.  982. 

Same.  Subsequent  contract  for  material.  And,  notVFithstanding 
a  subsequent  contract  for  the  furnishing  of  the  rest  of  the  materials, 
where  the  first  contract  has  been  broken  ofC,  the  claim  for  the  mate- 
rial under  the  first  contract  was  required  to  be  filed  within  ninety  days 
after  ceasing  to  furnish  materials  tliereunder:  Pacific  Mfg.  Co.  v. 
Brown,  8  Wash.  347,  36  Pac.  Rep.  273. 

In  BoLster  v.  Stocks.  13  Wash.  460,  43  Pac.  Rep.  532,  534,  1099,  it 
was  said:  "As  to  the  time  of  the  record  of  the  lien,  that  is  a  matter 
over  which  the  respondent  has  no  control;  he  has  done  what  the  law 
requires  of  him  when  he  files  the  lien   for  record." 

"  Davis  v.  MacDonough,  109  Cal.  547,  550,  42  Pac.  Rep.  450;  Santa 
Monica  L.  &  M.  Co.  v.  Hege,  48  Pac.  Rep.  69,  s.  c.  on  rehearing  119  Cal. 
376,  378,  51  Pac.  Rep.  555;  Marchant  v.  Hayes,  120  Cal.  137,  138,  49  Pac. 
Rep.  840;  Schwartz  v.  Knight,  74  Cal.  432,  434,  16  Pac.  Rep.  235;  Roy- 
lance  V.  San  Luis  Hotel  Co.,  74  Cal.  273,  277,  20  Pac.  Rep.  573;  Wil- 
lamette S.  M.  L.  &  M.  Co.  V.  Los  Angeles  College  Co.,  94  Cal.  229,  237,  29 
Pac.  Rep.  629;  Perry  v.  Brainard,  8  Pac.  Rep.  882,  8  West  Coast  Rep.  429; 
Schallert-Ganahl  L.  Co.  v.  Sheldon  (Cal.,  Feb.  9,  1893),  32  Pac.  Rep.  235; 
Kerckhoff-Cuzner  M.  &  L>.  Co.  v.  Olmstead,  85  Cal.  80,  83,  24  Pac.  Rep. 
648.  See  Reed  v.  Norton,  90  Cal.  590,  600,  26  Pac.  Rep.  767,  27  Id.  426; 
French  v.  Powell.  135  Cal.  636.  640,  68  Pac.  Rep.  92. 

Prematurely  filed  claim  of  mechanic's  lien  cannot  be  enforced: 
Baker  v.  Lake  L.  C.  &  Irr.  Co.  (Cal.  App.,  March  26,  1908),  94  Pac. 
Rep.   773. 

Colorado.  Subcontractors'  claims  filed  before  thirty  days  "  after 
completion  "  of  the  building  are  premature,  and  of  no  effect:  Tabor- 
Pierce  L.  Co.  V.  International  T.  Co.,  19  Colo.  App.  108,  75  Pac.  Rep. 
150   (under  Laws  1893,  ch.  cxvil,  p.   318). 

Compare:     Hart  v.  Mullen,  4  Colo.  512. 

Nevada.     Contra:     Hunter  v.  Truckee  Lodge,   14  Nev.   24,   28. 

Oklahoma.  "So  long  as  a  party's  time  for  filing  a  mechanic's  lien 
has  not  expired,  he  could  file  as  many  statements  in  liis  efforts  to 
make  a  good  lien  as  he  eliose":  El  Reno  E.  L.  &  T.  Co.  v.  Jennison, 
5  Okl.  759,  764,  50  Pac.  Rep.  144. 


§§  423. 424  mechanics'  liens.  378 

§  423.  Same.  Computation  of  time.  The  ordinary  rules 
for  the  computation  of  time  within  which  acts  must  be  done 
apply  generally  in  the  case  of  the  filing  of  claims  of  lien.^- 

The  word  "  within,"  as  used  in  the  statute,-^  and  in  similar 
provisions  of  law,  has  been  held  to  mean  "  not  beyond,"  and 
any  act  is  "  within "  a  time  named  that  does  not  extend 
beyond  it.-* 

§  424.  Time  of  filing,  when  not  fixed  by  statute.  Inde- 
pendently of  the  question  of  estoppel  raised  by  the  amend- 
ment of  1897  to  section  eleven  hundred  and  eighty-seven,-"' 

Washington.  Where  the  claim  is  prematurely  filed,  for  the  reason 
that  the  last  portion  of  the  materials  furnished  had  not  arrived, 
although  on  the  way,  the  claimant  has  a  right  to  file  a  second  notice 
after  the  delivery  of  the  materials:  Huttig  Bros.  Mfg.  Co.  v.  Denny 
Hotel  Co.,  6  Wash.  122,  32  Pac.  Rep.  1073. 

-  Kerr's  Cyc.  Civ.  Code,  §  10;  Kerr's  Cyc.  Code  Civ.  Proc.,  §  12,  and 
notes. 

23  Kerr's  Cyc.  Code  Civ.  Proc.,   §  1187. 

2*  French  v.  Powell,  135  Cal.  636,  639,  68  Pac.  Rep.  92,  construing 
act  of  March  27,  1897,  relating  to  filing  claims  for  labor  or  material 
for   public   work. 

Montana.  W^here  there  are  separate  contracts  not  constituting 
a  running  account  for  materials,  and  where  there  is  no  reasonably, 
if  not  perfectly,  definite  amount  to  be  furnished  from  time  to  time 
under  one  entire  contract,  the  claim  must  be  filed  within  ninety  days 
from  the  time  when  payment  was  due  under  each  contract:  A.  M. 
Holter  H.  Co.  v.  Ontario  M.  Co.,  24  Mont.  184,  61  Pac.  Rep.  3,  7,  8 
(under  Code  Civ.  Proc,   §  2131). 

Nevr  Mexico.  From  time  of  last  item:  See  Mountain  E.  Co.  v.  Allies, 
9  N.  M.  512,   56  Pac.  Rep.  284,  285. 

Oregon.  A  claim  for  labor  in  a  mine  was  required  to  be  filed  within 
sixty  days  after  cessation  from  labor  thereon,  and  the  time  is  reckoned 
by  excluding  the  first  day,  or  day  from  or  after  which  an  act  is  done, 
or  last  day  of  service,  and  including  the  last  of  the  period  prescribed: 
Horn  V.  United  States  M.  Co.,   47  Oreg.   124.   81   Pac.  Rep.   1009. 

First  and  last  day  for  computing  time:  See  note  49  L.  R.  A.  236. 

Washington.  The  claim  of  a  material-man  filed  August  4th,  the 
furnishing  of  materials  beginning  on  March  19th  and  ceasing  on  May 
6th,  is  ■within  ninety  days,  all  of  the  last  day  being  given  to  file  the 
claim:  Seattle  L.  Co.  v.  Sweeney,   33  Wasli.   691,   74  Pac.  Rep.  1001. 

Claim  is  not  filed  in  time  v»-hen  the  work  was  completed  and 
accepted  during  the  first  days  in  October  and  the  claim  was  filed 
April   3d:     Ellsworth   v.  Layton,   37  Wash.   340,   79  Pac.   Rep.   947. 

WVoming.  An  indebtedness  becomes  complete  by  performing  the 
labor  or  furnishing  the  materials,  and  is  considered  complete,  or  to 
have  "accrued,"  when  the  last  item  originally  included  in  the  account 
is  furnished  or  done,  and  not  when  the  last  item  remaining  unpaid  is 
so  furnished  or  done:  and  the  claim  must  be  filed  within  ninety  days 
after  such  accrual:  Big  Horn  L.  Co.  v.  Davis,  14  Wyo.  455,  84  Pac. 
Rep.    900,    85   Id.    1048    funder   Rev.    Stats.    1-899,    §  2893). 

»  Kerr's  Cyc.  Code  Civ.  Proc,  §  1187. 


379  FILING    CLAIM    OP    LIEN.  §  4-24 

where  the  statute  requires  the  filing  of  the  claim  in  order 
to  perfect  the  lien,  and  does  not  provide  any  particular  time 
within  which  the  same  shall  be  done,  it  must  be  filed  within 
a  reasonable  time.-*'  It  has  been  shown  that  contractors, 
subcontractors,  and  laborers  may  have  a  lien  for  the  lal)or 
performed  upon  a  building,  improvement,  or  structure, 
whether  the  work  was  for  the  "  construction,  alteration, 
addition  to,  or  repair,"  or  not.^^ 

Filing  after  completion.  The  statute  ^^  provides  for  the 
filing  of  claims  "  after  the  completion  of  any  building, 
improvement,  or  structure,  or  of  the  alteration,  addition  to, 
or  repair  thereof,"  and  does  not  provide  for  the  filing  of 
a  claim  after  the  completion  of  work  on  objects  other  than 
those  specified.  The  expression,  "  every  person,  save  the 
original  contractor,  claiming  the  benefit  of  this  chapter," 
must  file  his  claim  after  such  completion,  would  not  seem 
necessarily  to  indicate  that  the  claim  must  be  filed  after 
the  completion  of  all  kinds  of  labor ;  if  there  should  be 
such  case,  the  general  principle  laid  down  in  the  case  above 
cited  would  be  applicable ;  -'•  namely,  that  the  claim  must 
be  filed  within  a  reasonable  time.  The  fact  that  the  expres- 
sion, "  every  person,  save  the  original  contractor,  claiming 
the  benefit  of  this  chapter,"  must  file  a  claim  after  the 
completion  of  such  work,  is  followed  by  the  clause,  "  or 
within  thirty  days  after  the  performance  of  any  labor  in  a 
mining  claim,"  a  claim  must  be  filed,  shows  that  the  clause 
containing  the   expression  "  every  person "   does   not   pro- 

*•  California  P.  W.  v.  Blue  Tent  Consol.  H.  G.  M.  (Cal..  Oct.  8,  1889). 
22  Pac.  Rep.  391. 

"  See  "Labor  for  W^hich  a  Lien  is  Given,"  §§  130  et  seq.,  ante. 

^'^   Kerr's  Cyc.  Code  Civ.  Proc,  §  1187. 

Period  of  alteration  or  otlier  «ork  on  building  extending  over  a 
long  time,  wiiere  the  plans  and  specifications  for  the  work  were  made 
as  the  same  progressed,  the  court  held  tlie  improvement  to  be  an  entire 
undertaking,  and  that  the  time  for  filing  mechanics'  liens  commenced 
to  run  from  the  date  on  which  the  work  or  other  alteration  was 
actually  or  constructivelj'  completed:  Farnham  v.  California  S.  D.  & 
T.  Co.   (Cal.  App.,  May  18,  1908),  6  Cal.  App.  Dec.  721,  96  Pac.  Rep.  788. 

Occupancy  of  building  by  OY*ner  during  course  of  alteration  there- 
on, where  such  occupancy  not  inconsistent  with  further  work  on  the 
building,  will  not  set  the  statute  of  limitations  running  against  the 
filing   of   claim   for   mechanic's   lien:    Id. 

^  California  P.  \V.  v.  Blue  Tent  Consol.  H.  G.  M.  (Cal.,  Oct.  8,  1889), 
22   Pac.  Rep.   391. 


§  425  mechanics'  liens.  »   380 

vide  for  every  contingency  that  may  arise.^°  But,  in  the 
case  of  "  structures,"  where  the  owner's  laborer  works  upon 
the  same  for  a  specified  time,  it  was  held  that  he  must 
file  his  claim  within  thirty  or  sixty  days  from  the  termi- 
nation of  the  employment. ^^ 

§  425.  Notice  of  completion  or  cessation  of  work.  Statu- 
tory provision.  The  California  statute  ^-  provides :  "  The 
owner  of  any  property  [A]  on  which  labor  has  been  per- 
formed, or  [B]  for  which  materials  have  been  furnished 
to  be  used  in  the  construction,  alteration,  addition  to,  or 
repair,  either  in  whole  or  in  part,  of  any  work  mentioned 
in  section  eleven  hundred  and  eighty-three  of  this  code, 
must,  [1]  within  ten  days  after  the  completion  thereof, 
or  [2]  within  forty  days  after  cessation  from  labor  upon 
[a]  any  unfinished  contract,  or  upon  [b]  any  unfinished 
building,  improvement,  or  structure,  or  [c]  the  alteration, 
addition  to,  or  the  repair  thereof,  file  for  record  in  the 
office  of  the  county  recorder  of  the  county,  or  city  and 
county,   in   which   such   property   or   some   part   thereof   is 

■">  See  §  436,  post. 

31  Weithoff  V.  Murray,  76  Cal.  508,  510,  18  Pac.  Rep.  435.  But  see 
Malone  v.  Big-  Flat  M.  Co.,  76  Cal.  578,  586,  18  Pac.  Rep.  772.  This 
decision  is  not  in  accord  with  the  principle  in  the  later  case  of  Cali- 
fornia P.  W.  V.  Blue  Tent  Cons.  H.  G.  M.  (Cal.,  Oct.  8,  1889),  22  Pac. 
Rep.  391,  that  where  the  statute  does  not  provide  a  time  within 
which  the  claim  must  be  filed,  it  must  be  filed  within  a  reasonable 
time,  unless  inferentially  "  a  reasonable  time "  be  considered  to  be 
substantially  the  same  time  provided  in  the  statute  for  similar  cases. 

''^  Kerr's  Cyo.  Code  Civ.  Proc.,  §  1187,  as  amended  March   27,   1897. 

See,    generally,    §§  334   et   seq.,   ante. 

What  provision  requires.  Ovvuer.  The  provision,  in  terms,  only 
requires  the  owner  to  file  the  notice  of  completion  or  cessation  from 
labor,  although  all  persons  claiming  an  interest  in  said  property 
shall  be  estopped,  etc.,  by  a  failure  of  the  owner  to  file  such  notice. 
The  word  "  owner  "  applies  only  to  the  holder  of  the  legal  title  or  of 
the  fee:  See  Hinckley  v.  Field's  B.  &  C.  Co.,  91  Cal.  136,  138,  27  Pac. 
Rep.  594;  Lambert  v.  Davis,  116  Cal.  292,  48  Pac.  Rep.  123;  Gorbett  v. 
Chambers,   109  Cal.   178,  182,  41  Pac.  Rep.  873. 

Con.stitiifionality.  There  may  be  some  question  as  to  the  consti- 
tutionality of  this  provision,  so  far  as  it  relates  to  persons  simply 
■'  claiming  an  interest "  in  the  property,  distinct  from  the  legal 
title. 

Notice  of  completion  o£  or  cessation  from  work  not  having  been 
filed  by  the  owner,  claim  of  mechanic's  lien  may  be  filed  at  any  time 
within  ninety  days  from  the  date  of  the  actual  completion  of  the 
work:  Farnham  v.  California  S.  D.  &  T.  Go.  (Cal.  App.,  May  18,  1908), 
6  Cal.  App.  Dec.  721,  96  Pac.  Rep.  788. 


n 


381  FHJXG    CLAIM    OF    LIEN".  §  426 

situated,  a  notice  setting  forth  [3]  the  date  when  [a]  such 
buikling,  improvement,  or  structure,  or  [b]  the  alteration, 
addition  to,  or  repair  thereof,  was  actually  completed,  or 
[e]  in  ease  of  cessation  from  labor  for  thirty  days,  the  date 
on  which  such  cessation  actually  occurred,  and  said  notice 
shall  also  contain  [4]  the  name  and  [5]  the  nature  of  the 
title  of  the  person  who  caused  the  said  building,  improve- 
ment, or  structure  to  be  erected,  or  said  alteration,  addition 
to,  or  repair  to  be  made,  and  also  [6]  a  description  of  the 
property  sufficient  for  identification,  and  said  notice  must 
be  [7]  verified  by  said  owner  or  some  other  person  in 
his  behalf.  [C]  In  ease  any  such  owner  neglect  to  file 
said  notice  as  herein  required,  within  the  time  herein  re- 
quired, then  the  said  owner  and  all  persons  deraigning 
title  from  him,  and  all  persons  claiming  an  interest  in  said 
property,  shall  be  estopped,  in  any  proceedings  brought  to 
foreclose  any  mechanic's  lien  or  liens,  provided  for  in  this 
chapter,  from  maintaining  a  defense  therein  based  on  the 
ground  that  said  lien  or  liens  have  not  been  filed  within  the 
time  provided  in  this  chapter.  Said  notice,  when  so  filed  for 
record,  must  be  [8]  recorded  by  the  county  recorder  with 
whom  the  same  is  filed  for  record,  and  the  [9]  fee  for 
recording  the  same  shall  be  the  sum  of  one  dollar.  .  .  . 
Provided,  however,  [D]  that  in  any  event  all  claims  of 
lien  must  be  filed  within  ninety  days  after  [1]  the  com- 
pletion of  said  building,  improvement,  or  structure,  or  [2] 
the  alteration,  addition  to,  or  repair  thereof." 

§  426.  Same.  Purpose  and  scope  of  provision.  The  pro- 
vision quoted  in  the  last  preceding  section  was  evidently 
intended  to  remedy,  in  a  measure,  the  difficulty  Avhich  claim- 
ants experienced  in  determining  when  their  claims  should 
be  filed;  but  it  is  not  free  from  doubts  and  uncertainties. 
If  the  claim  of  lien,  under  the  proviso  above  set  out,  must 
be  filed  within  ninety  days  after  the  completion  of  the 
building,  improvement,  or  structure,  or  the  alteration,  ad- 
dition to,  or  repair  thereof,  tlie  OAvner  might  set  up  as  a 
defense  that  the  same  was  not  so  filed,  and  the  operation  of 
the  estoppel  mentioned  in  the  first  part  of  the  section  would 


§  427  mechanics'  liens.  382 

be  limited  to  cases  other  than  those  where  the  claim  was  filed 
after  said  ninety  days. 

Reason  for  the  enactment.  There  is  good  reason  for  the 
enactment  of  the  proviso;  for,  otherwise,  the  owner  might 
never  file  the  notice  of  completion,  and  the  question 
whether  there  were  other  lien-holders  entitled  to  share  in 
the  fund  would  be  continually  open,  and  there  would  be 
no  limitation  upon  the  time  of  filing  claims  and  commencing 
suits  to  foreclose  the  liens,  the  advantages  of  which  limita- 
tion having  already  been  pointed  out.^^ 

Street-work,  whether  included.  It  is  questionable  whether 
the  provision  as  to  such  notice  applies  to  street-work,  etc., 
in  incorporated  cities  mentioned  in  section  eleven  hundred 
and  ninety-one.^* 

Where  the  claim  of  lien  was  filed  more  than  the  statu- 
tory period  after  the  filing  of  a  notice  of  cessation  of  the 
work  by  the  contractor,  the  work  having  been  abandoned  by 
the  contractor  in  an  unfinished  condition,  it  is  immaterial 
to  urge  an  objection  that  the  finding  is  against  evidence, 
where  the  evidence  shows  that  there  was  a  cessation  of  work 
at  an  earlier  date.^^ 

An  error  in  the  date  of  a  cessation  from  labor  upon  aban- 
donment by  the  contractor,  in  a  verified  notice  required  by 
the  statute,^®  if  shown,  does  not  prejudice  claimant,  if  the 
notice  was  filed  within  the  statutory  time  after  such  cessa- 
tion, notwithstanding  the  notice  is  required  to  be  verified." 

§  427,  Same.  Failure  of  owner  to  file  notice.  The  fail- 
ure of  the  owner  to  file  the  notice  of  completion  or  cessation 
from  labor  does  not  indefinitely  postpone  the  time  within 
which  claims  must  be  filed  ;^^  and  even  though  the  owner 
fails  to  file  such  notice  within  the  required  time,  subclaim- 
ants  under  a  valid  contract  must  file  their  claims  within 

«  See  §§  418,   419,  ante. 
**  Kerr's    Cyc.    Code    Civ.    Proc,    §  1191. 
See  Beatty  v.  MiHs.   113  Cal.   312,   45   Pac.  Rep.   468. 
«5  Boscow  V.  Patton,  136  Cal.  90,  68  Pac.  Rep.  490,  upon  appeal  from 
a   jtidgnient   for    defendants. 

.■!6   Kerr's   Cyc.   Coile   Civ.  Proc..   §  11S7. 

"   Boscow  V.  Patton.   136  Cal.  90.   68  Pae.  Rep.  490. 

88  Buell   &  Co.  V.  Brown,   131   Cal.   158,   160,   63  Pac.   Rep.   167. 


■ 


383  FILING    CLAIM    OP    LIEN.  §  428 

one  hundred  and  twenty  days  from  cessation  from  work ; 
otherwise  the  claim  is  too  late.^"  In  any  event,  the  owner 
is  not  estopped  to  set  up  the  fact  that  he  claimant  had  not 
filed  his  claim  within  ninety  days  from  the  actual  or  statu- 
tory completion  of  the  building,  improvement,  or  struc- 
ture, or  the  alteration,  addition  to,  or  repair  thereof. 

§  428.  Same.  In  case  of  structures.  This  section  relates 
to  the  objects  enumerated  under  the  designation  of  struc- 
tures.^" Before  the  amendment  of  1897  to  section  eleven 
hundred  and  eighty-seven,^^  it  was  held  that  the  original 
contractor  must  file  his  claim  of  lien  within  sixty  days  after 
the  completion  of  his  contract,  irrespective  of  the  time  when 
the  building  might  be  completed.*-  And  the  language  of  the 
section  seems  broad  enough  to  cover  any  work  done  by  the 
"  original  contractor,"  who  claims  a  lien  under  the  chapter 
relating  to  mechanics'  liens.  Before  such  amendment  to 
the  section,  subcontractors,*^  owner's  material-men,**  con- 
s' BueU  &  Co.  V.  Brown,  131  Cal.  158,  160,  63  Pac.  Rep.  167.  In 
this  case  the  building  never  was  actuaUy  completed.  Work  stopped 
for  thirty  days,  and  ninety  days  were  thereafter  allowed  in  which  to 
file  claims  of  Hen. 

*"  See  §§  166   et  seq.,  ante. 

"   Kerr's  Cjo.  Coile  Civ.  Proc,  §  1187. 

"  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  106  Cal.  224,  232,  39  Pac.  Rep. 
758;  Davis  v.  MacDonough,  109  Cal.  547,  550,  42  Pac.  Rep.  450;  La  Grill 
V.  Mallard,  90  Cal.  373,  374,  27  Pac.  Rep.  294;  White  v.  Soto,  82  Cal. 
654,  658,  23  Pac.  Rep.  210. 

Idaho.  Original  contractor,  sixty  days:  Bradbury  v.  Idaho  &  O. 
L.  I.  Co.,   2   Idaho   239,    10  Pac.   Rep.   620. 

Nevada.  The  original  contractor  may  file  his  claim  of  lien  within 
sixty  days:  Salt  Lake  H.  Co.  v.  Cliainman  M.  &  E.  Co.,  128  Fed  Rep. 
509,  s.  c.  137  Fed.  Rep.  632  (under  Cutting's  Comp.  Laws,  §  3885). 

"  Harmon  v.  San  Francisco  &  S.  R.  R.  Co.,  105  Cal.  184,  188,  38  Pac. 
Rep.  632;  Davis  v.  MacDonough,  109  Cal.  547,  549,  42  Pac.  Rep.  450; 
Joost  v.  Sullivan,  111  Cal.  286,  292,  43  Pac.  Rep.  896;  McLaughlin  v. 
Perkins,  102  Cal.  502,  505,  36  Pac.  Rep.  839. 

"  Schwartz  v.  Knight,  74  Cal.  432,  433,  16  Pac.  Rap.  235;  Sparks  v. 
Butte  County  G.  M.  Co.,  55  Cal.  389,  391.  See  Barrows  v.  Knight,  55 
Cal.    155.    158. 

Alaska.  A  material-man  must  file  his  claim  of  lien  witliin  thirty 
days  after  furnishing  the  materials:  Jorgensen  Co.  v.  Sheldon,  2 
Alas.  607,  609   (under  Civ.  Code,  §  266). 

Colorado.  Where  all  items  of  an  account  relate  to  one  trans- 
action, in  a  continuous  account,  the  rig'  t  to  initiate  a  lien  accrues 
from  the  date  of  the  last  item:  Cary  H.  Co.  v.  McCarty,  10  Colo.  App. 
200,  50  Pac.  Rep.  744  (under  act  of  1883,  §30);  and  interruption  for 
short  periods  does  not  desti'oy  the  contiiniity  of  the  work,  where  there 
Is  no  attempt   to  abandon:   Id.     See  Small    v.   Foley,   8  Colo.  App.   435. 


§  428  mechanics'  liens.  384 

tractor's  material-men/^  contractor's  laborers,*®  owner's 
laborers,*'  and  every  person,  save  the  original  contractor, 
claiming  the  benefit  of  the  chapter  on  mechanics'  liens  on 
real  property,*®  were  required  to  file  their  claims  within 
thirty  days  after  th^^  actual  completion  of  the  building, 
improvement,  or  structure,  or  of  the  alteration,  addition  to, 

447,  47  Pac.  Rep.  64;  and  see,  generally,  Hart  v.  Mullen,  4  Colo.  512 
(forty  days  before  or  after  completion)    (1872). 

Idaho.  Material-men,  sixty  days:  Colorado  I.  W.  v.  Riekenberg. 
4  Idaho  262,  38  Pac.  Rep.  651. 

Montana.  Where  materials  are  delivered  under  separate  and  dis- 
tinct contracts,  the  claim  should  be  filed  within  the  time  prescribed 
by  the  statute  after  the  delivery  under  each  of  such  contracts: 
Helena  S.  H.  &  S.  Co.  v.  Wells,  16  Mont.  65,  40  Pac.  Rep.  78. 

The  oivner's  niaterial-nian  must  file  his  claim  within  ninety  days 
of  the  furnishing  of  the  last  item:  Missoula  M.  Co.  v.  O'Donnell,  24 
Mont.  65,  60  Pac.  Rep.  594,  60  Id.  991   (under  Code  Civ.  Proc,  §  2131). 

Oklahoma.  Statement  must  be  filed  within  sixty  days  after  the 
last  item  of  material  is  furnished:  Ferguson  v.  Stephenson-Brown  L. 
Co.,  14  Okl.  148,  77  Pac.  Rep.  184  (under  WMlson's  Stats.  1903,  ch.  Ixvi, 
§  4819). 

Oregon.  Under  Hill's  Ann.  Laws.  §§  3673,  3678,  the  claim  could  be 
filed  within  thirty  days  from  completion  of  tlie  building,  although 
more  than  thirty  days  from  the  time  of  furnishing  the  last  materials: 
Fitch  V.  Howitt,  32  Oreg.  396,  52  Pac.  Rep.  192;  Curtis  v.  Sestanovich, 
26  Oreg.  107,  37  Pac.  Rep.  167;  Ainslie  v.  Kohn,  16  Oreg.  363.  19  Pac. 
Rep.  97.  See  Forest  Grove  D.  &  L.  Co.  v.  McPherson,  31  Oreg.  586,  46 
Pac.   Rep.   884. 

But  see  Harrisburg  L.  Co.  v.  Washburn,  29  Oreg.  150,  172,  44  Pac. 
Rep.  390.  which  appears  to  hold  that  it  may  also  be  filed  within 
thirty   days  after  furnishing  the  last  material. 

*^  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co.,  94  Cal. 
229,  237,  29  Pac.  Rep.  629;  Giant  Powder  Co.  v.  San  Diego  F.  Co., 
78  Cal.  193,  196,  20  Pac.  Rep.  419  (statutory  completion  —  acceptance, 
occupation,  and  use),  s.  c.  88  Cal.  20,  25,  25  Pac.  Rep.  976,  and  97  Cal. 
263,  264,  32  Pac.  Rep.  172;  Santa  Clara  V.  M.  &  L.  Co.  v.  Williams. 
(Cal.,  Dec.  8,  1892),  31  Pac.  Rep.  1128;  Bianchi  v.  Hughes,  128  Cal.  24, 
56  Pac.  Rep.  610.  See  San  Joaquin  L.  Co.  v.  W^elton,  115  Cal.  1,  3,  46 
Pac.  Rep.  735,  1057;  Gordon  Hardware  Co.  v.  San  Francisco  &  S.  R.  R. 
Co.,  86  Cal.  620,  621.  25  Pac.  Rep.  125. 

Oregon.  Contractor's  material-men  should  file  their  claims  within 
thirty  days  after  completion  of  the  building:  Curtis  v.  Sestanovich, 
26  Oreg.  107,  37  Pac.  Rep.  67;  Ainslie  v.  Kohn,  16  Oreg.  363,  19  Pac. 
Rep.  97  (1885);  and  it  is  unimportant  whether  the  claim  was  filed 
within  thirty  days  after  the  work  and  materials  were  furnislied:  Id. 

«  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co.,  94  Cal. 
229,  237,  29  Pac.  Rep.  629;  Leppert  v.  Lazar,  99  Cal.  xviii,  sub  nom. 
Lippert  v.   Lazar,    33    Pac.    Rep.    797. 

"  Keener  v.  Elagle  Lake  L.  &  Irr.  Co.,  110  Cal.  627,  631,  43  Pac.  Rep. 
14;   Ward  v.   Crane.    118   Cal.    676,    679,    50   Pac.   Rep.    839. 

«  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1187;  Davis  v.  MacDonough,  109  Cal. 
647,  550,  42  Pac.  Rep.  450;  Marchant  v.  Hayes,  120  Cal.  137,  138,  49  Pac. 
Rep.  840. 


385  FILING    CLAIM    OP    LIEN.  §  429 

or  repair  thereof,  or  after  the  statutory'  completion  thereof, 
and  not  within  thirty  daj's  after  the  completion  of  their 
respective  contracts.  AA^hat  constitutes  "  actual "  and 
"  statutory "  completion  has  already  been   considered.*® 

§  429.  Same.  General  rule.  So  far  as  "  structures  "  are 
concerned,  the  amendment  requiring  the  owner  to  file  a 
notice  of  completion  or  cessation  from  work,  discussed  in 
the  preceding  sections,  has  not  changed  the  requirement 
that  the  said  claim  of  lien  must  be  filed  after  the  actual  or 
statutory  completion  of  the  building,  improvement,  or  struc- 
ture, or  of  the  alteration,  addition  to,  or  repair  thereof. 
As  shown  above,^"  the  filing  of  the  claim  before  that  time  is 
premature,  and  confers  no  right.  Since  the  amendment 
of  1897  to  section  eleven  hundred  and  eighty-seven.^^  all 
such  claimants,  save  the  original  contractor,  may  file  their 
claims  at  any  time  after  the  completion  (actual  or  statutory) 
of  any  building,  improvement,  or  structure,  or  of  the  alter- 
ation, addition  to,  or  repair  thereof,  and  until  the  expira- 
tion of  thirty  days  after  the  filing  of  said  notice  of  comple- 
tion or  cessation  by  said  owner,  as  set  forth  in  the  section ; 
but  "  in  any  event  [that  is,  even  if  the  owner  does  not  file 
notice  of  completion  or  cessation],  all  claims  of  lien  must 
be  filed  within '  ninety  days  after  the  completion  of  said 
building,  improvement,  or  structure,  or  of  the  alteration, 
addition  to,  or  repair  thereof."  ^^ 

*'  What  constitutes  actual  completion,  and  in  what  cases  an  occu- 
pation, use,  or  acceptance  of  a  building  or  cessation  from  work 
thereon  for  thirty  days  is  the  statutory  eiiuivalent  of  completion  for 
the  purpose  of  filing-  liens,  was  treated  in  detail  in  §§  334  et  seq.,  ante. 

Wliere  tlie  occupation  of  the  building  by  the  o^vner  is  neitlier 
exclusive,  nor  inconsistent  with  a  continuance  by  the  contractor  in 
the  completion  of  the  contract,  and  the  owner  does  not  act  toward.s 
the  contractor,  in  reference  to  the  building,  in  such  a  way  as  by  neces- 
sary implication  to  give  notice  that  the  building  had  been  accepted 
in  satisfaction  of  the  contract,  and  the  contractor  continues  tlie  work, 
with  full  knowledge  by  the  owner  of  the  circumstances  under  which 
the  work  is  being  done,  the  statute  will  not  be  set  in  motion  as  to  the 
time  when  claims  should  be  filed,  by  reason  of  such  occupation:  Or- 
landi  v.  Gray,  125  Cal.  372,  374,  58  Pac.  Rep.  15. 

«•  See  §  422,  ante. 

"  Kerr's  Cyc.  Code  Civ.  Proc,  5  1187. 

•■■^  This  does  n<jt  provide  for  the  contingency  that  the  original  con- 
tractor may  not  yet  have  completed  his  contract. 
Mech.  L.ien3  —  25 


§§  430-432  mechanics'  liens.  386 

§  430.  Time  of  filing  claim.  Certificate  of  architect. 
Subcontractors'  claims  must  be  filed  within  thirty  days  after 
the  occupation  or  use  of  a  building  by  the  owner  or  his 
representative,  or  the  acceptance  thereof  by  the  owner  or  his 
agent,  notwithstanding  the  original  contract  provides  for 
certificates  of  the  architect  stating  that  the  instalment  is 
due  or  the  work  completed,  as  the  ease  may  be,  as  a  condi- 
tion precedent  to  the  contractor's  right  to  demand  paj'ment, 
and  notwithstanding  the  claims  of  lien  were  filed  within 
thirty  days  after  the  final  certificate  of  the  architect.^^ 

§  431.     Same.      Substantial    or    actual    completion.      If, 

notwithstanding  the  trivial  character  of  the  uncompleted 
work,  work  actualh'  continued,  and  was  completed  on  a  cer- 
tain date,  the  claim  of  the  subcontractor  was  required  to 
be  filed  within  thirty  days  after  such  actual  completion,^* 
before  the  amendment  requiring  the  notice  of  completion 
or  cessation  to  be  filed  by  the  owner. 

§  432.  Same.  Abandonment  of  the  work.  Where  the 
contractor  abandoned  the  work  before  its  completion,  the 
claim  need  not  have  been  filed  within  thirty  days  there- 
after, where  the  owner  continued  the  work,  and  without 
occupying  or  accepting  the  building,"-^  before  the  amend- 
ment requiring  the  owner  to  file  notice  of  completion  or 
cessation  from  work. 


53  McLaughlin  v.  Perkins,  102  Cal.  502,  505,  36  Pac.  Rep.  S39. 

See  "Certificates,"  §§  238  et  seq.,  ante. 

=■»  Joost  V.  Sullivan,  111  Cal.  286.  292.  43  Pac.  Rep.  896  (dictum  — 
before  amendment  of  1897). 

New  Mexico.  Filing  claim  within  sixty  days  after  substantial  com- 
pletion: See  Genest  v.  Las  Vegas  M.  B.  Assoc,  11  N.  M.  251,  67  Pac. 
Rep.    743. 

==  Marble  Lime  Co.  v.  Lordsburg  Hotel  Co.,  96  Cal.  332,  335,  31  Pac. 
Rep.  164.  In  this  case,  by  inference,  the  rule  is  deduced  that  unless 
the  claim  is  filed  within  thirty  days  after  thirty  days'  cessation  from 
labor,  the  lien  is  barred.  See  Kerckhoff-Cuzner  M.  &  L.  Co.  v.  Olm- 
stead,  85  Cal.  80,  24  Pac.  Rep.  648.  The  plaintiff  In  the  latter  case 
had  knowledge  of  the  cessation  of  work,  and  there  was  no  question 
as  t-^  the  actual  cessation  of  labor  for  thirty  days,  or  as  to  the 
meaning    of    those    words. 

HaTvaii.  Even  if  the  contractor  abandon  the  work,  a  material- 
man's time  to  file  his  claim  is  three  nionths  after  the  completion  of 
the  building:     Pacific  H.  Co.  v.  Lincoln,  12  Hawn.  358,   361. 


387  FILING    CLAIM    OF    LIEN.  §  433 

In  case  of  an  actual  abandonment,  the  right  of  the  owner 
to  complete  the  contract,  after  awaiting  the  thirty-day  sus- 
pension, is  derived  from  the  statute;  but  where  the  right  of 
completion  was  given  by  the  contract  itself,  and  no  cessa- 
tion of  labor  for  any  number  of  days  was  a  condition  pre- 
cedent to  the  owner's  right  of  completion,  such  completion 
by  the  owner  is  a  completion  under  the  contract."'' 

Abandonment  by  contractor.  Where  the  original  con- 
tractor abandoned  a  valid  contract,  and  thereupon  the 
owner  contracted  with  another  to  complete  the  building,  it 
was  held  incumbent  upon  those  who  claim  any  lien  by 
virtue  of  the  original  contract  to  file  their  claims  of  lien 
with  the  county  recorder  within  thirty  days  after  there 
had  been  a  cessation  from  labor  for  thirty  days  upon  the 
unfinished  contract,^^  before  the  amendment  requiring  the 
owner  to  file  notice  of  completion  or  cessation  from  labor. 

§  433.  Same.  Thirty  days'  cessation  from  labor.  Claims 
are  in  time  when  there  is  a  continuance  of  the  work  without 
a  cessation  of  thirty  days  until  a  certain  date,  after  which  it 
ceased  for  more  than  thirty  days,  and  they  are  filed  within 
thirty  days  after  the  end  of  the  thirty  days  from  the  date  of 
the  final  cessation  of  work,^^  before  the  enactment  of  the 
requirement  as  to  notice  of  completion  or  cessation  from 
labor. 

Where,  on  default  of  a  building  contractor,  the  owner,  in 
accordance  with  the  express  terms  of  the  valid  contract, 
terminated  the  employment  and  completed  the  work,  the 
ninety  days'  limitation  of  time  to  commence  actions  to 
enforce  the  lien  prescribed  by  section  eleven  hundred  and 
ninety  ^^  commenced  to  run  against  the  claimant  for  mate- 
rials furnished,  to  be  paid  for  within  thirty-five  days  after 
completion  of  the  building,  at  the  end  of  thirty-five  days 

"  Hug-hes  V.   Hoover,   3   Cal.   App.   145,   84   Pac.   Rep.    681. 

"  Johnson  v.  La  Grave,  102  Cal.  324,  326,  36  Pac.  Rep.  651.  See 
Jones  V.  Kruse,   138  Cal.   613,  617,  72  Pac.  Rep.  146. 

See  note  43  Am.  St.  Rep.  902. 

^  Marble  L.  Co.  v.  Lordsburg  Hotel  Co.,  96  Cal.  332,  335,  31  Pac. 
Rep.   164   (void  contract). 

"  Kerr's  Cyc.  Code  Civ.  Froc,  §  1190. 


§  434  mechanics'  liens.  388 

from  the  owner's  completion  of  the  work,  and  not  from  the 
contractor's  abandonment  of  it."" 

Whether  the  contract  is  valid  or  void,*'^  subclaimants 
cannot  file  their  claims  before/-  but  may  do  so  after, 
thirty  days'  cessation  from  labor.^^  But  when  there  has 
been  a  cessation  from  lal)or  for  thirty  days  upon  any  un- 
finished building,  the  time  within  which  material-men  or 
laborers  must  file  their  claims  begins  to  run  at  once,  and, 
before  the  amendment  above  referred  to,  if  the  claim  was 
not  filed  within  thirty  days  after  such  suspension  from 
labor,  they  are  not  in  time,  and  a  filing  within  thirty  days 
from  the  actual  completion  of  the  building  is  insufficient/'* 

§  434.  Same.  Agreements  affecting  time  of  filing  claims. 
Giving  credit.     Where  the  statutory  original  contract  pro- 

««  Hughes  V.  Hoover,   3  Cal.  App.   145,   84  Pac.  Rep.   681. 

Doctrine  of  the  text,  while  in  accordance  with  previously  decifled 
cases,  is  apparently  overturned  by  decisions  handed  down  since  the 
text  was  in  type:  See  ante,  p.  289,  foot-note  117,  and  p.  290,  foot-note 
119. 

As  to  -n-hen  statute  begins  to  ran  ag;ainst  mechanic's  lien,  see  note 
7  Am.  &  Eng.  Ann.  Cas.  947. 

"  Under  a  void  statutory  original  contract,  and  under  the  pro- 
visions of  §  1187  of  the  Code  of  Civil  Procedure,  as  amended  in  1887, 
which  provided  that  a  "  cessation  from  labor  for  thirty  days  upon 
[the]  unfinished  building"  was  "equivalent  to  the  completion" 
thereof  so  far  as  the  filing  of  claims  of  lien  was  concerned,  there 
must  be  such  cessation,  or  the  lien  fails  if  tlie  claim  is  filed  before 
actual  completion  of  the  building:  Jones  v.  Kruse,  138  Cal.  613,  617,  72 
Pac.  Rep.  146  (under  §  1187  as  amended  by  Stats.  1887,  ch.  cxxxvii, 
p.  154,  providing  "in  case  of  contracts"). 

^  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co., 
94  Cal.  229,  237,  29  Pac.  Rep.  629;  Marchant  v.  Hayes,  120  Cal.  137,  138, 
49   Pac.   Rep.   840. 

See    S  422,    ante. 

^  Reed  v.  Norton,  90  Cal.  590,  600,  26  Pac.  Rep.  767,  27  Id.  426. 

Colorado.  Under  the  act  of  1893.  subclaimants  were  required  to 
file  their  claims  within  thirty  days  from  the  time  the  structure  was 
completed;  and  the  structure  was  completed,  in  contemplation  of  law, 
by  a  cessation  of  labor  for  more  than  thirty  days:  Burleigh  B.  Co.  v. 
Merchant  B.  &  B.  Co.,   13  Colo.  App.   455,   59  Pac.  Rep.  83,  86. 

Where  there  ■»vas  complete  cessation  of  ^vork  on  a  strnctnre  for 
more  than  thirty  days  after  November  6,  1897,  and  work  was  then 
resumed  December  27,  1897,  and  the  statement  of  a  material-man  was 
filed  December  10,  1897,  the  statute  was  satisfied:  Perkins  v.  Boyd 
(Colo.),  86  Pac.  Rep.  1045  (under  Laws  1893,  ch.  cxvil,  §  3,  p.  318). 

"^  Kerckhoff-Cuzner  M.  &  L.  Co.  v.  Olmstead.  85  Cal.  80,  84.  24 
Pac.  Rep.  648  ("Works  and  Thornton,  _JJ.,  dissenting.  In  this  case, 
the  specifications  were  not  filed,  but  no  express  statement  was  made 
that  the  contract  was  void);  Johnson  v.  La  Grave,  102  Cal.  324,  326, 
36  Pac.  Rep.  651  (valid  contract).  See  Marble  Lime  Co.  v.  Lords- 
burg  Hotel   Co.,   96  Cal.   332,   337,   31  Pac.  Rep.   164    (void  contract). 


389  FILING    CLAIM    OF    LIEN.  §  435 

vided  that  the  final  payment  shall  be  made  "thirty-five 
days  after  completion  and  date  of  acceptance,  provided 
said  building  and  premises  were  free  and  clear  from  any 
and  all  liens  and  encumbrances  arising  from  or  created  or 
placed  thereon  bj'  said  contractor,  or  any  person  claiming 
to  have  furnished  him  labor  or  materials  for  the  erection 
and  completion  of  said  work,"  and  before  the  thirty-five 
days  expired  the  contractor  filed  his  claim,  it  was  held  that 
the  clause  quoted  was  not  equivalent  to  an  express  agree- 
ment that  no  lien  should  be  filed  by  -the  contractor  until 
after  the  expiration  of  the  thirty-five  days,  the  complaint 
having  been  filed  after  the  thirty-five  days;  for  at  any 
time  after  the  completion  and  before  the  expiration  of  the 
sixt}'  days  allowed  by  the  statute  to  the  contractor,  his 
claim  of  lien  may  be  filed,  and  the  giving  of  credit  for  a 
longer  time  would  not  affect  the  time  within  which  the  claim 
must  be  filed. "^ 

Instalments  maturing  during  the  progress  of  the  work 
are  not  barred  from  foreclosure  under  section  eleven  hun- 
dred and  ninety,'^'^  requiring  liens  to  be  foreclosed  within 
ninety  days  after  the  filing  of  the  claim  or  after  the  expira- 
tion of  any  credit  given,  where  a  sub  claimant's  bill  was 
payable  in  instalments  during  the  progress  of  the  work,  the 
last  payment  to  be  made  within  or  before  thirty-five  days 
from  completion  of  the  building,  when  the  action  was  com- 
menced in  contemplation  of  law  before  ninety  days  after  the 
completion  of  the  building,  and  not  later  than  ninety  days 
from  the  end  of  such  thirty-five  days.**^ 

^  435.  Same.  Void  contract.  Before  the  amendment  of 
section  eleven  hundred  and  eighty-seven,®^  above  referred 
to,"^  where  the  statutory  original   contract  was  void,   tlie 

«  Knowles  v.  Baldwin,   125  CaL  224.  226,  57  Pac.  Rep.  988. 

•'  Kerr's  Cyc.  Code  Civ.  Proc,  §  1190. 

"  Hughes  V.  Hoover,  3  Cal.  App.  145,  84  Pac.  Rep.  681. 

Colorado.  An  agreement  extending  tlie  time  to  perform  the  con- 
tract win  be  construed  to  be  an  entire  agreement  with  the  first  con- 
tract, and  not  a  separate  and  distinct  contract,  so  that  the  time  within 
which  to  file  claims  commences  to  run  from  the  date  of  the  last 
work  done  under  the  extension  agreement:  Perkins  v.  r!o\-d.  16  Colo. 
App.  266.  65  Pac.  Rep.  350,  s.  c.  37  Colo.  265,  86  Pac.  Rep.  1045. 

«*  Kerr's  Cye.  Code  Civ.  Proc,  §  1187. 

^  See  §  425,  ante. 


§  435  mechanics'  liens.  390 

claimant  was  required  to  file  the  claim  at  any  time  within 
thirty  days  after  the  actual  completion  of  the  building, 
irrespective  of  its  previous  acceptance  and  occupancy  by 
the  owner.'^'*  The  distinction  which  was  made  between  a 
void  and  valid  statutory  original  contract  in  reference 
to  the  equivalent  of  completion  resulting  from  the  occupa- 
tion, use,  or  acceptance  of  a  building,  improvement,  or 
structure,  under  the  peculiar  language  of  section  eleven 
hundred  and  eighty-seven,"  providing  that,  "  in  case  of  con- 
tracts," such  occupation,  use,  or  acceptance  should  be  such 
equivalent,  is  superseded  by  the  amendment  of  1897,  pro- 
viding that  "  in  all  cases  "  such  occupation,  use,  or  accept- 
ance shall  "  be  deemed  equivalent  to  the  completion."  ^^ 

Where  the  statutory  original  contract  is  void,  and  the 
original  contractor  abandons  the  contract,  and  the  owner 
starts  to  finish  the  building  before  a  cessation  of  labor  by 
the  contractor  for  thirty  days,  and  actually  finishes  the 
building,  subclaimants  were  not,  before  the  amendment, 
required  to  file  their  claims  within  thirty  days  after  ces- 
sation of  labor  by  the  contractor  for  thirty  days,  but  could 
file  them  within  the  statutory  period  after  the  completion 
of  the  building.^^ 

Burden  of  determining  whether  any  contract  made,  or 
assumed  to  have  been  made,  between  the  owner  and  the 
original    contractor    is    valid    or    not    does    not,    generally 

»  Willamette  S.  M.  Co.  v.  Kremer,  94  Cal.  205,  208,  29  Pac.  Rep.  633. 

Before  amendment  o£  1897  to  §  1187  of  Code  of  Civil  Procedure,  it 
was  said  by  the  court:  "The  provision  of  the  statute  that  this  con- 
clusive evidence  of  completion  shall  be  applicable  only  '  in  case  of 
contracts'  makes  it  essential  that  the  claimant  who  would  invoke 
the  provision  in  support  of  his  claim  of  lien,  filed  before  the  actual 
completion  of  the  building-,  shall  show  that  at  the  time  of  such  occu- 
pation or  use  by  the  owner  there  was  a  subsisting  and  valid  con- 
tract, under  which  the  building  was  being  constructed.  If  tliere  was 
no  original  contract  for  its  construction,  or  if  the  one  which  had 
been  actually  entered  into  had  become  '  wholly  void,'  the  condition 
which  the  statute  has  prescribed  for  the  application  of  the  exception 
would  not  exist,  and  the  claim  could  not  be  filed  until  after  the  actual 
completion  of  the  building,  or  until  after  there  had  been  a  cessation 
from  labor  for  thirty  days  upon  the  unfinished  building":  Willamette 
S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co.,  94  Cal.  229,  239,  29  Pac. 
Rep.   629. 

See  "Completion,"  §.§334  et  seq.  ante. 

n  Kerr's  Cyo.  Code  Civ.  Proc,  §  1187.    . 

n  See  "  Performance,"  §§  334  et  seq.,  ante. 

w  Pierce  v.  Birkholm,  115  Cal.  657,  660,  47  Pac.  Rep.  681. 


391  FILING    CLAIM    OP   LIEN,  §  436 

speaking,   rest  upon  the   claimant,   when  he  comes  to   file 
his  claim/* 

§  436.  Same.  Mines  and  mining  claims."  The  Califor- 
nia statute  '"  provides  a  different  time  for  the  filing  of  a 
claim  of  lien  in  case  of  "  labor  in  a  mining  claim  "  than  in 
the  case  of  "  structures,"  discussed  in  the  preceding  sec- 
tion. The  claim  in  the  former  case  must  be  filed  "  within 
thirty  days  after  the  performance  of  any  labor  in  a  mining 
claim."  The  provision  as  to  filing  of  notice  of  completion  or 
cessation  ^'  appears  to  be  applicable  only  where  a  "  struc- 
ture "  is  an  object  under  the  first  clause  of  section  eleven 
hundred  and  eighty-three."^  The  provision  showai  to  be 
applicable  to  "  structures  "  ^^  does  not  refer  to  the  opera- 
tion of  a  mine,  and  it  has  already  been  seen  that  work 
upon  a  mine  may  be  continuous  in  its  nature,  and  maj^ 
have  no  definite  completion,  but  may  go  on  for  fifty  years 
or  more.^°  And  the  proceedings  for  acquiring  a  lien  upon 
structures  are  not  in  all  respects  applicable  to  those  claim- 
ing liens  upon  mining  claims  or  mines;  for  instance,  they 
cannot  all  date  back  to  the  commencement  of  the  work,  and 
there  is  no  necessary  completion  of  the  work,  and  there  is 
no  special  thirty  days  thereafter  within  which  lien-holders 
must  record  their  claims  of  liens. ^^ 

'*  Davies-Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641,  646,  22  Pac. 
Rep.   860. 

'"  This  section  relates  to  the  objects  mentioned  in  the  second  clause 
of  §  1183,  Kerr's  Cyc.  Code  Civ.  Proc. 

See,  for  occasions  upon  which  the  statute  expressly  requires  a 
claim  of  lien  to  be  filed,  §363,  ante;  and  "Object  of  Labor,"  §§166 
et  seq.,  ante. 

"  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1187. 

"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1187. 

"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1183. 

'»  See  §§  130  et  seq.,  §§  166  et  seq.,  ante. 

«"  See  "  Performance,"  §§  334  et  seq.,  ante.  Of  course,  there  may  be 
work  upon  a  mine  not  continuous  in  its  nature. 

"'  Williams  v.  Mountaineer  G.  M.  Co.,  102  Cal.  134,  139,  34  Pac.  Hep. 
702.  36  Pac.  Rep.  388. 

It  seems  that  the  statute,  by  implication,  gives  a  lien  only  to  mate- 
rial-men furnishing  materials  for  work  on  a  mining  claim  ("Nature 
of  Property,"  §§  166  et  seq.,  ante),  such  liens,  however,  having  been 
allowed  (California  P.  W.  v.  Blue  Tent  Consol.  H.  G.  M.,  Cal.,  Oct. 
8,  1889,  22  Pac.  Rep.  391;  Williams  v.  Mountaineer  G.  M.  Co.,  supra); 
the  provision  as  to  the  time  of  filing  such  claims  of  lien  expressly 
relates  only  to  the  "  performance  of  any  labor  in  a  mining  claim," 
(see  §§  149  et  seq.,  ante),  and  not  to  the  furnishing  of  materials  for  a 
mining  claim. 


§  i37  mechanics'  liens.  392 

Where  the  claimant  performs  labor  in  a  mining  claim,  he 
must  file  his  claim  within  thirty  days  after  the  performance 
of  such  labor.®^  When  a  laborer  on  a  mine,  under  his  con- 
tract, is  to  be  paid  by  the  month,  or  other  fixed  period,  it  is 
not  necessary  to  file  a  claim  of  lien  within  thirty  days  from 
the  end  of  each  month,  or  other  fixed  period,  but  the  lien 
must  be  filed  within  thirty  days  from  the  actual  cessation 
of  employment  or  work  upon  the  mine.^^ 

This  provision  having  no  application  where  materials  are 
furnished  fur  a  mining  claim,  and  the  statute  having  stated 
no  particular  time  in  Avhich  to  file  a  claim  of  lien  in  such 
case,  it  is  only  necessary  to  file  it  within  a  reasonable  time.^* 

§  437.  Same.  Grading,  etc.«^  It  has  been  held  that  the 
word  "  improvement,"  in  section  eleven  hundred  and 
eighty-seven,^"  which  is  made  the  subject  (object)  of  the 
lien,  is  evidently  used  as  equivalent  to  the  object  upon 
which  the  labor  has  been  performed,  and  cannot  be  applied 
to  a  particular  kind  or  class  of  labor  performed  in  the 
erection  of  a  building. ^^     In  other  words,  "  improvement  " 

82  Kerr's  Cyc.  Code  Civ.  Proc,  §  1187. 

'3  Ah  Louis  V.  Harwood,  140  Cal.  500,  505,  74  Pac.  Rep.  41,  holding 
that  tliis  point  was  so  held,  at  least  inferentially,  in  Malone  v.  Big 
Flat  G.  M.  Co.,  76  Cal.  578,  18  Pac.  Rep.   772. 

AVhere  the  laborer  ^orks  by  a  monthly  employment,  it  does  not 
terminate  at  the  end  of  each  montli,  and  separate  notices  within 
thirty  days  from  the  end  of  each  montli  are  not  required,  the  court 
saying,  "  This  assumes  that  each  month  is  separate  and  distinct  from 
every  other  month,  and  requires  a  separate  notice  of  lien.  But  we  do 
not  think  that  this  can  be  implied  from  the  words,  '  within  thirty 
days  .  .  .  after  the  performance  of  any  labor  in  a  mining  claim.'  Upon 
the  same  reasoning,  we  should  have  to  say  that  persons  who  worlced 
by  the  day  should  file  a  separate  notice  for  eacli  day's  work":  Malone 
V.  Big  Flat  G.  M.  Co.,  76  Cal.   578,   586,   18  Pac.  Rep.   772. 

Idaho.  A  laborer  in  a  mine  must  file  his  claim  within  sixty  days 
after  the  performance  of  the  labor,  and  the  fact  that  it  is  not  shown 
that  the  claimant  had  ceased  to  labor  at  the  time  of  filing  the  claim 
to  a  lien  for  his  labor  does  not  vitiate  the  claim:  Idaho  M.  &  M.  Co.  v. 
Davis,  123  Fed.  Rep.  396,  59  C.  C.  A.  200  (under  Sess.  Laws  1895,  p.  48, 
§  6). 

Nevada.  See  Capron  v.  Strout,  11  Nev.  304;  Skyrme  v.  Occidental 
M.  &  M.  Co.,  8  Nev.  219. 

^  California  P.  W.  v.  Blue  Tent  Consol.  H.  G.  M.  (Cal.,  Oct.  8,  1889), 
22   Pac.  Rep.   391. 

See  §  424,  ante. 

*^  Under  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1191. 

*"   Kerr'.s  Cyc.  Code  Civ.  Proc,  S  1187. 

"  Davis  V.  MacDonough,  109  Cal.   547,   551,   42  Pac.   Rep.   450. 


393  PILING    CLAIM   OP   LIEN.  §  437 

refers  to  the  completed  "  objects  "  *^  enumerated  in  section 
eleven  lumdred  and  eighty-three,*^  and  the  words  "  build- 
ings, mining  claims,  or  other  improvements,"  mentioned  in 
section  eleven  hundred  and  eighty-eight,""  in  reference  to 
the  filing  of  claims  against  two  or  more  of  such  objects, 
have  the  same  significance  as  in  section  eleven  hundred 
and  eightj^-three,"^  and  the  clause  in  section  eleven  hundred 
and  ninety-one,^2  giving  to  the  contractor  a  lien  upon  the 
"  lot  "  which  he  grades,  or  fills,  or  '•'  otherwise  improves," 
refers  to  some  improvement  of  the  "  lot  "  upon  which  the 
lien  is  given,  rather  than  to  the  "  improvements  "  upon  the 
lot  referred  to  in  section  eleven  hundred  and  eighty-three.''^ 
But,  notwithstanding  this  condition  of  the  decisions,  it 
seems  to  be  held  that,  so  far  as  the  original  contractor  is 
concerned,  laying  the  matter  of  subclaimaints  aside,  he 
must  file  his  claim  of  lien  Avithin  sixty  days  after  the  com- 
pletion of  his  contract  for  the  work,  under  this  section.^* 
And  although  such  contract  may  provide  for  a  certificate 
that  the  work  is  done  to  the  satisfaction  of  the  superin- 
tendent of  streets,  the  claim  must  be  tiled  within  sixty 
days  after  the  completion  of  the  contract,  and  not  within 
sixty  days  from  the  giving  of  the  certificate."^ 

»»  See  "Object  of  Labor,"   §§  166  et  seq.,  ante. 

"  Kerr's   Cyc.   Code   Civ.   Proc,   §1183. 

•«  Kerr's   Cyc.   Code   Civ.   Proc,   §  1188. 

»'   Kerr's  Cyc.  Code  Civ.  Proc,  §  1183. 

'"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1191. 

"  Warren  v.  Hopkins,  110  Cal.  506,  42  Pac.  Rep.  986.  The  que.stion 
as  to  the  time  of  filing-  the  claim  was  not  involved  in  this  case. 

"  Beatty  v.  Mills.  113  Cal.  312,  313,  45  Pac.  Rep.  468.  This  decision 
says  that  the  claim  must  be  filed  within  sixty  days  after  the  comple- 
tion of  the  work.  This,  construed  in  the  lig-ht  of  the  facts  of  the  case, 
undoubtedly  means  the  "  completion  of  the  contract." 

"«  Beatty  v.  Mills.  113  Cal.  312,  313,  45  Pac.  Rep.  468. 


§  438  mechanics'  liens.  394 


CHAPTER  XXII. 

LIMITATIONS  ON  LIENS.     EXTENT  OF  LIENS. 

§  438.  Territorial  or  "  property  "  extent  of  lien. 

§  439.  Same.     Statutory  provision. 

§  440.  Same.     Space  for  convenient  use  and  occupation. 

§  441.  Same.     Structures.     Illustrations. 

§  442.  Same.     Land  affected  when  building  is  destroyed  or  removed. 

§  443.  Same.     Mines  and  mining  claims. 

§  444.  Same.     Several  mining  claims. 

§  445.  Same.     Mining  machinery. 

§  446.  Same.     Grading  and  other  work.     Lot. 

§  447.  Property  viewed  as  an  entirety. 

§  448.  Same.     Distinct  objects  on  one  parcel  of  land. 

§  449.  Same.     Railroads,  canals,  gas-works  and  water-works. 

§  450.  Same.     Lien  on  building  alone.    False  representations  as  to 

ownership. 

§  451.  Same.     Mining  claims  and  mines. 

§  452.  The  lien  as  limited  by  contract. 

§  453.  Same.     Statutory  provision. 

§  454.  Same.     General  interpretation  of  provision. 

§  455.  Same.     Contract  as  notice. 

§  456.  Same.     Price.     Value. 

§  457.  Same.     Contract  of  subcontractor  and  contractor. 

§  458.  Same.     Claimants  under  subcontractors. 

§  438.  Territorial  or  "  property  "  extent  of  lien.^  The 
California  constitution  -  and  the  Code  of  Civil  Procedure  ^ 

^  See.  g-enerally,  note  65  Am.  St.  Rep.  165. 

Mechanics'  liens  on  lea.sebold  estate:  See  2  Am.  &  Eng.  Ann.  Cas. 
687;  3  Am.  &  Eng.  Ann.  Cas.  1096. 

Same.  Surrender  does  not  defeat  lien:  See  note  3  Am.  &  Eng.  Ann. 
Cas.    1098. 

Mechanics'  liens  on  several  lots:  See  notes  1  L.  R.  A.  514;  2  Am.  & 
Eng.   Ann.  Cas.   685. 

To  what  mechanic's  lien  attaches:  See  note  13  L.  R.  A.  702. 

Colorado.  See  Colorado  I.  W.  v.  Taylor,  12  Colo.  App.  451,  460.  55 
Pac.  Rep.  942;  Seely  v.  Neill  (Colo.),  86  Pac.  Rep.  334;  Perkins  v. 
Boyd  (Colo.),  86  Pac.  Rep.  1045. 

Montana.  See  Western  I.  W.  v.  Montana  P.  &  P.  Co..  30  Mont- 
550,  77  Pac.  Rep.  413,  416. 

Xew  Mexico.  See  Post  v.  Fleming,  10  N.  M.  476.  62  Pac.  Rep.  1087, 
1090. 

2  Cal.  Const.   1879,  art.  xx,  %  15,  Henning's  General  Laws,  p.  civ. 

»  Kerr's  Cyc.  Code  Civ.  Proc,  §  1183. 


395  EXTENT   OF   LIENS.  §§439,440 

provide  that  the  claimants  named  shall  have  a  lien  upon 
the  "  property  "  upon  which  they  have  bestowed  labor  or 
furnished  materials,  for  the  value  of  such  labor  done  and* 
materials  furnished.  The  distinction  between  the  object 
upon  which  the  labor  is  done  and  the  property  upon  which 
the  lien  is  given  has  been  pointed  out.^ 

§  439.  Same.  Statutory  provision.  The  statute  ^  pro- 
vides :  "  The  land  upon  which  any  building,  improvement, 
well,  or  structure  is  constructed,  together  with  a  convenient 
space  about  the  same,  or  so  much  as  may  be  required  for 
the  convenient  use  and  occupation  thereof,  to  be  deter- 
mined by  the  court  on  rendering  judgment,  is  also  subject 
to  the  lien,  if,  at  the  commencement  of  the  work,  or  of  the 
furnishing  of  the  materials  for  the  same,  the  land  belonged 
to  the  person  who  caused  said  building,  improvement,  well, 
or  structure  to  be  constructed,  altered,  or  repaired,  but  if 
such  person  owned  less  than  fee-simple  estate  in  such  land, 
then  only  his  interest  therein  is  subject  to  such  lien." 

§  440.     Same.    Space  for  convenient  use  and  occupation. 

It  is  not  an  unconstitutional  infringement  of  the  rights 
of  the  citizen  for  the  legislature  to  declare  that  the  lien 
shall  extend  not  only  to  the  structure  which  the  owner,  by 
his  own  act,  has  made  an  inseparable  portion  of  his  land, 
but  also  to  the  land  necessary  for  its  use." 

The  words  "  convenient  use  and  enjoyment "  are  equiva- 
lent to  the  expression,  "  convenient  use  and  occupation."  ^ 

*  "Or,"  in  Cal.  Const.  1879,  art.  xx,  §  15,  Henning's  General  Laws,  p. 
civ. 

»  See  §§  166  et  seq.,  and  §§  399  et  seq.,  ante. 

"  Kerr's  Cyc.  Code  Civ.  Proc-,  §  1185  (amendment  in  effect  sixty 
days  from  Feb.  23,  1899).  See,  generally,  NeweU  v.  Brill,  2  Cal.  App. 
61,  64,  83  Pac.  Rep.  76. 

Idahu.     See  Robertson  v.  Moore,  10  Idaho  115,  77  Pac.  Rep.  218,  222. 

Oren^on.     See  Willamette  Falls  T.  &  M.  Co.  v.  Riley,  1  Oreg.  183. 

Utab.  Lien  on  land  to  which  structure  has  been  wrongfully 
removed:    See  Sanford  v.  Kunkel   (Utah),  85  Pac.  Rep.  363,  1012. 

Wa-shington.      See  Lee  v.   Kimball    (Wash.),   88  Pac.  Rep.  1121. 

'  Stimson  M.  Co.  v.  Nolan  (Cal.  App.,  June  19,  1907),  91  Pac.  Rep. 
262.     See  Linck  v.  Meikeljohn,  2  Cal.  App.  506,  508,  84  Pac.  Rep.  309. 

»  Ward  V.  Crane,   118  Cal.  676,  679.  50  Pac.  Rep.  839. 

As  to  lien  upon  ^vell  and  "  appiirtenanoes,"  see  Parke  &  Lacy  Co.  V. 
Inter  Nos  O.  &  D.  Co.,   147  Cal.  490,  495,   82  Pac.  Rep.  51. 


§  441  mechanics'  liexs.  396 

The  phrase  means  such  space  or  area  of  land  as  is  necessary 
to  the  enjoyment  of  the  building  for  the  purpose  in  view 
in  its  construction,  and  the  uses  to  which  it  is  to  be  put 
must  manifestly,  many  times,  determine  the  quantity  of  land 
necessary  to  the  convenient  use  and  occupation  thereof ;  ® 
and  this  is  a  question  of  fact,  and  is  issuable." 

The  liens  are  properly  confined  to  the  lands  necessary 
and  convenient  to  the  use  and  occupation  of  the  particular 
building  upon  which  the  work  was  done.^^ 

The  court  may  exercise  its  own  judgment,  under  certain 
circumstances,  as  upon  a  matter  of  common  knowledge,  in 
determining  the  amount  of  additional  land  required  for  the 
convenient  use  and  occupation  of  the  building. ^- 

§  441.  Same.  Structures.  Illustrations.  The  statute 
does  not  contemplate  that  sufficient  land  around  a  dwell- 
ing-house to  support  the  owner  while  living  therein  shall 
be  set  apart,  and  it  was  held  error  to  set  apart  forty  acres 
of  land  around  a  dwelling-house  as  being  required  for  con- 
venient use  and  occupation.^^ 

»  Tunis  V.  Lakeport  A.  P.  Assoc,  98  Cal.  285,  286,  33  Pac.  Rep.  63; 
Ward  V.  Crane,   118   Cal.   Q'^Q,   679,   50  Pac.   Rep.   839. 

A  fair-grroiinds  tract  of  about  sixty  acres,  being  a  race-track,  with 
its  training-stables,  grand  stand,  corrals,  and  other  improvements, 
belonging  to  a  certain  agricultural  park  association,  is  more  tlian 
necessary  to  the  convenient  use  and  occupation  of  a  hotel,  club-house, 
and  saloon  thereon,  although  these  may  tend  to  bring  custom  to  such 
hotel,  and  the  erection  of  such  building  cannot  form  the  basis  of  a 
lien  upon  the  entire  tract:  Tunis  v.  Lakeport  A.  P.  Assoc,  98  Cal.  285, 
287,  33  Pac.  Rep.   63. 

See   §§  447   et  seq.,   post. 

Railroad.  Statement  that  twenty-five  feet  on  each  side  of  a  rail- 
road is  necessary  for  the  use  and  operation  of  the  road,  contained  in 
claim  of  lien:    See  Bringham  v.  Knox,  127  Cal.  40,  44,  59  Pac.  Rep.  198. 

Montana.  The  general  rule  is,  that  the  lien  attaches  only  to  the 
particular  tract  on  which  the  labor  was  performed:  Big  Blackfoot  M. 
Co.  V.  Bluebird  M.  Co.,  19  Mont.  454,  459,  48  Pac  Rep.  778. 

See  note   18,  post,  this  chapter. 

New  Mexico.  See  Mountain  E.  Co.  v.  Miles,  9  N.  M.  512,  56  Pac.  Rep. 
284,   285. 

"  W'illamette  S.  M.  Co.  v.  Kremer,  94  Cal.  205,  211,  29  Pac.  Rep.  633. 

Montana.  See  Western  I.  W.  v.  Montana  P.  &  P.  Co.,  30  Mont.  550, 
77  Pac.  Rep.  413. 

"  Macomber  v.   Bigelow,   126  Cal.   9,   12,   58  Pac.   Rep.   312. 

"  Union  L.  Co.  v.  Simon  (Cal.  App.,  March  13,  1906),  89  Pac.  Rep. 
1077,  1080,  affirmed  on  "this  point  (Sup.  Ct.),  89  Pac.  Rep.  1081. 

"  Cowen  v.  Griffith,  108  Cal.  224,  226,'  41  Pac.  Rep.  42.  In  this  case 
it  was  said:  "The  statute  simply  allows  him  a  dwelling-house,  and  a 


^1 


897  EXTENT    OP    LIENS.  §  442 

Where  there  is  nothing  to  show  that  the  rear  portion  of  a 
lot  covered  by  old  buildings  is  in  any  way  convenient  or 
necessary  to  the  use  of  the  new  buildings,  although  the 
void  original  contract  embraced  other  buildings,  yet  the 
liens  are  properly  confined  to  the  buildings  upon  which 
the  work  was  done.^* 

§  442.  Same.  Land  affected  when  building  is  destroyed 
or  removed.  The  effect  of  the  destruction  or  removal  of  a 
building  upon  which  it  is  sought  to  impose  liens  for  its  con- 
struction has  been  differently  regarded  in  various  juris- 
dictions, depending,  in  some  measure,  upon  the  view  of  the 
court  with  reference  to  particular  provisions  of  the  statute, 
and  especially  with  regard  to  the  fundamental  idea  as  to 
whether  the  lien  attaches  primarily  to  the  structure  or  to  the 
land.  Thus  where  a  building  in  course  of  erection  is 
destroyed  by  tire  without  the  fault  of  either  party,  and 
before  lien  filed,  it  has  been  said  that  the  lien  fails  as  to 
the  building,  and  since  there  is  no  building,  the  court  cannot 
determine  that  an3'  land  may  be  required  for  its  convenient 

quantity  of  land  around  it  sufficient  for  its  convenient  use.  As  to  his 
income  or  source  of  support,  the  statute  does  not  concern  itself.  It 
is  not  our  purpose  to  indicate  to  the  trial  court  the  quantity  of  land 
necessary  for  the  convenient  use  and  occupation  of  this  dwelling-- 
house,  but  it  is  entirely  evident  that  forty  acres  is  too  much,  and  we 
think  it  equally  evident  that  an  entire  twenty-acre  tract  is  too  much." 

Colorado.  Lien  on  "improvement"  as  distinct  from  the  land:  See 
Church  V.  Smithea,  4  Colo.  App.  175,  35  Pac.  Rep.  267   (1883). 

See  "Sale,"  §948,  post;  "Fixtures,"  §§185  et  seq.,  ante;  "Property 
Viewed  as  an  Entirety,"  §§  447  et  seq.,  post. 

New  Mexico.  With  reference  to  a  ditch  it  was  said:  "All  the 
proofs  go  to  show  that  the  land  is  appurtenant  to,  and  to  be  benefited 
by,  the  ditch.  The  term,  'so  mucli  as  may  be  required  for  the  con- 
venient use  and  occupation  thereof,'  nieans  all  the  land  benefited,  and 
the  value  of  which  is  increased  or  enhanced  by  the  improvements 
actually  made  upon  the  land  appurtenant  and  adjacent  thereto,  and 
for  which  such  improvements  are  made  at  the  instance,  knowledge,  or 
consent  of  the  owner  or  reputed  owner  thereof.  A  ditch  requires 
much  more  land  for  a  convenient  space,  use,  and  occupation  than  a 
house,  wall,  or  fence,  and  a  lien  will  attach  for  the  construction  of 
either":  Ford  v.  Springer  L.  Assoc,  8  N.  M.  37,  59,  41  Pac.  Rep.  541. 
It  was  admitted  in  the  pleadings  in  this  case  that  twenty-two 
thousand  acres  of  land  were  appurtenant.  Same  case  affirmed, 
Springer  L.  Assoc,  v.  Ford,  168  U.  S.  513,  bk.  42  L.  ed.  562,  18  Sup.  Ct. 
Rep.   170. 

See  §§  447  et  seq.,  post. 

"  Macomber  v.  Bigelow.  126  Cal.  9,  12,  58  Pac.  Rep.  312. 


§  443  mechanics'  liens.  398 

use,  and  hence  no  lien  attaches  to  the  land  upon  which  it 
was  constructed.^^ 

§  443.  Same.  Mines  and  mining  claims.  If  labor  or 
materials  have  gone  into  a  building  or  other  structure,  the 
lien  attaches:  1.  To  the  structure;  2.  To  the  ground  upon 
Avhich  it  stands;  or  3.  To  the  interest  therein  of  the  person 
who  caused  the  structure  to  be  erected,  and  to  a  space 
about  it  sufficient  for  its  convenient  use  or  occupation, 
that  being  deemed  —  and  rightly  so  —  the  property  created 
or  improved.  In  case  of  labor  or  material  contributed  to 
the  development  or  working  of  a  mine,  the  lien  extends  to 
the  whole  mine,  and  the  rule,  though  expressed  in  different 
terms,  is  in  effect  the  same ;  for  mining  claims  have  always 
been  restricted  by  the  rules  and  customs  of  miners  prior  to 
the  enactment  of  the  mining  laws,  and  since  that  time  by  the 
laws  themselves,  to  what  is  regarded  as  a  reasonable  quan- 
tity of  placer-ground,  and  in  case  of  lode  claims  to  so  much 
only  of  the  ground  adjacent  to  the  lode  as  is  required  for 
convenient  working.  The  statute,  therefore,  does  not  in 
reality  contain  two  rules  for  determining  what  is  subject 
to  mechanics'  liens.  It  contains  but  one  rule,  and  that  the 
rule  of  the  constitution,  which  fastens  a  lien  upon  the  prop- 

'^  Humboldt  L.  M.  Co.  v.  Crisp,  146  Cal.  686,  2  Am.  &  Eng.  Ann.  Cas. 
811,  81  Pac.  Rep.  30,  106  Am.  St.  Rep.  75. 

See  note  on  this  point,  2  Am.  &  Eng:.  Ann.  Cas.  689-691. 

New  Mexico.  If,  after  a  mechanic's  Hen  is  filed,  the  structure  is 
destroyed  by  fire,  the  lien  upon  the  land  does  not  fail:  Armijo  v. 
Mountain  E.  Co.,  11  N.  M.  235,  67  Pac.  Rep.  726.  The  court  say:  "We 
are  well  aware  that  the  rule  of  law  as  to  whether  a  mechanic's  lien 
for  improvements  made  on  a  lot  can  be  recovered  when  such  improve- 
ments are  destroyed,  is  held  differently  in  the  different  states;  those 
states  which  follow  the  law  as  laid  down  in  Pennsylvania  holding-  that 
such  a  recovery  cannot  be  had,  while  states  which  do  not  follow 
Pennsylvania  —  and  it  seems  to  us  that  they  base  their  opinions  on 
the  better  reasoning,  and  are  in  greater  number  —  hold  to  the  con- 
trary rule,"  citing  Gaty  v.  Casey,  15  111.  189;  Steigleman  v.  McBride,  17 
111.  300;  Ellett  v.  Tyler,  41  111.  449;  Schwartz  v.  Saunders,  46  111.  18; 
Paddock  v.  Stout,  121  111.  571,  13  N.  E.  Rep.  182;  Smith  v.  Newbaur,  144 
Ind.  95,  42  N.  E.  Rep.  40,  1094.  33  L.  R.  A.  681;  Clark  v.  Parker,  58  Iowa 
509,  12  N.  W.  Rep.  553;  Freeman  v.  Carson,  27  Minn.  516,  8  N.  W.  Rep. 
764;  McLaughlin  v.  Green,  48  Miss.  175;  Stuart  v.  Broome,  59  Tex.  466. 

Utah.  The  land  on  which  the  building  is  erected  by  the  owner  is 
liable  to  the  lien,  even  though  the  building  is  removed  to  another  lot 
without  the  knowledge  of  the  owner:  Sanford  v.  Kunkel  (Utah),  85 
Pac.  Rep.  363,  1012. 


399  EXTENT   OF    LIENS.  §  444 

erty  improved  or  benefited ;  and  oil  claims,  being  within  the 
reason  as  well  as  the  letter  of  the  law,  are,  as  they  should 
be,  governed  by  the  same  rule,  and  the  lien  attaches  to 
the  entire  claim,  and  such  lien  would  attach  to  a  claim  of 
eighty  acres,  which  is  half  the  size  permitted  by  law  to  be 
located  as  a  consolidated  claim.^® 

Adjacent  non-mineral  land.  The  lien  on  a  mining  claim, 
however,  does  not  extend  to  adjacent  land  which  is  not 
mineral  in  character.^' 

§  444.  Same.  Several  mining  claims.  In  consonance 
with  the  rules  laid  down  in  the  preceding  sections,  and  as 
an  illustration  of  the  principles  and  reasoning  therein  dis- 
cussed, where  several  claims  or  locations  are  owned  and 
operated  as  one  mine,  as  against  the  parties  so  uniting  them 
they  may,  for  the  purpose  of  the  lien,  be  regarded  and 
treated  as  a  single  claim.^^ 

'«  Berentz  v.  Belmont  O.  M.  Co.,  148  Cal.  577,  583,  84  Pac.  Rep.  47. 
113  Am.  St.  Rep.  308,  reversing  on  this  point  (Cal.  App.),  84  Pac. 
Rep.  42. 

"  Bewick  v.  Muir,  83  Cal.  368,  372,  23  Pac.  Rep.  389,  390. 

See  "Object,"  §§  160  et  seq.,  ante. 

Idaho.  Idaho  M.  &  M.  Co.  v.  Davis,  123  Fed.  Rep.  396,  397,  59  C.  C.  A. 
200;  Phillips  v.  Salmon  R.  M.  &  D.  Co.,  9  Idaho  149,  72  Pac.  Rep.  886. 

Oregon.  See  Watson  v.  Noonday  M.  Co.,  37  Oreg-.  287,  60  Pac.  Rep. 
994,  996. 

'«  Hamilton  v.  Delhi  M.  Co.,  118  Cal.  148,  151,  50  Pac.  Rep.  378; 
Tredinnick  v.  Red  Cloud  Consol.  M.  Co.,  72  Cal.  78,  84,  13  Pac.  Rep.  152; 
and  see  Malone  v.  Big  Flat  G.  M.  Co.,  76  Cal.  578,  583,  18  Pac.  Rep.  772. 

Colorado.  The  lien  for  work  on  a  mill  does  not  extend  to  certain 
lode  mining  claims,  being  separate  and  distinct  pieces  of  realty:  Colo- 
rado I.   W.  V.   Taylor,   12  Colo.   App.   451,   55   Pac.   Rep.   942,   945. 

Idaho.  See  Thompson  v.  Wise  Boy  M.  &  M.  Co.,  9  Idaho  363,  74  Pac. 
Rep.   958. 

Montana.  Lien  to  the  extent  of  one  acre  was  not  given  upon  a 
lode  mining  claim,  because  tlie  law  gave  a  lien  on  tlie  quartz-lode: 
Smith  V.  Sherman  M.  Co.,  12  Mont.  524,  31  Pac.  Rep.  72;  Big  Blackfoot 
M.  Co.  V.  Bluebird  M.  Co.,  19  Mont.  454,  458,  48  Pac.  Rep.  778.  See 
Alvord  V.  Hendrie,  2  Mont.  115,  and  Davis  v.  Alvord,  94  U.  S.  545,  bk. 
24  L.  ed.  283,  modifying  the  same. 

A  number  of  non-eontiguouM  lode  oIaini.>4,  large  tracts  of  non- 
mineral  land,  town  lots,  water  rights,  etc.,  cannot  be  included  in  one 
statement  or  proceeding:  Big  Blackfoot  M.  Co.  v.  Bluebird  M.  Co., 
supra;    especially  wlien  not  under  one  contract:    Id. 

Non-contigiiou.s  land  may  be  included  under  one  continuing  con- 
tract:  Id.   458;   Helena  etc.  Co.  v.  Wells,   16  Mont.   65,   40  Pac.   Rep.   78. 

Nevada.  Salt  Lake  H.  Co.  v.  Chainman  M.  &  E.  Co.,  137  Fed.  Rep. 
632. 

Land  and  reduclion-workN  u  unity:  See  Gould  v.  Wise,  18  Nev.  253, 
3  Pac.  Rep.  30. 


§  445  mechanics'  liens.  400 

§  445.  Same.  Mining  machinery.  Under  the  express 
provisions  of  section  eleven  hundred  and  eighty-three/" 
the  lien  extends  to  "  the  works  owned  and  used  by  the 
owners  for  reducing  the  ores  from  such  mining  claim  or 
claims  or  real  property  so  worked  as  a  mine." 

Before  the  amendment  of  1907  to  section  eleven  hundred 
and  ninety-two,-"  mining  machinery  placed  upon  a  mine, 
under  a  contract  by  which  it  retained  its  status  as  per- 
sonalty^, did  not  become  a  part  of  the  realty,  and  Avas  not  sub- 
ject to  mechanics"  liens  for  work  done  upon  the  mine;  -^  and 
a  person  performing  labor  in  a  mining  claim  for  the  assign- 
ees of  a  vendee,  by  virtue  of  a  contract  that  if  the  vendee 
failed  to  purchase  the  mine  as  agreed,  he  could  remove 
certain  mining  apparatus  placed  by  him  on  the  mine  above- 
ground,  secures  no  lien  upon  such  personal  property, 
although  permanently  affixed  to  the  mine,  where  the 
machinery  is  leased  by  a  third  person  to  the  vendee  with 
the  option  of  purchase,  and  the  lessor  need  not  give  notice 
of  ownership  of  such  personal  property,  where  the  option 
to  purchase  was  not  exercised. ^^ 

19  Kerr's  Cyc.  Code  Civ.  Proc,  §  1183. 

=»>  Kerr's  Cyc.  Code  Civ.  Proc,  §  1192,  as  amended  Stats.  1907,  p.  577, 
Kerr's  Stat.s.  and  Aindts.   1906-07,  p.    481. 

=1  Jordan  v.  Myres,  126  Cal.  565,  567,  58  Pac.  Rep.  1061.  See  Hendy 
V.  Dinkerhoff,  57  Cal.  3,  40  Am.  Rep.  107. 

"  Jordan  v.  Myres,  126  Cal.  565,  58  Pac.  Rep.  1061    (decided  in  1899). 

"  Tlie  general  rule  is,  as  to  sales  upon  execution,  tliat  the  pur- 
chaser acquires  tliereby  only  sucli  title  and  interest  as  the  judgment 
debtor  liad,  and  tlie  rule  is  tlie  same  wliether  tlie  sale  follows  the  lien 
of  attachment  or  is  upon  execution  without  such  lien;  and  the  rule 
also  applies  at  sales  under  foreclosure  of  mortgages  upon  real  estate 
—  the  purchaser  ordinarily  takes  the  risk  of  title:  Boggs  v.  Fowler, 
16  Cal.  559,  76  Am.  Dec.  561.  We  cannot  see  in  what  way  the  sale 
upon  foreclosure  of  a  mechanic's  lien  can  be  said  to  carry  any  greater 
interest  than  the  owner  of  the  property  had  at  the  time  tlie  lien 
attached,  whatever  may  be  the  rule  as  to  a  bona  fide  purchaser  or 
mortgagee  of  the  land  without  notice.  In  the  case  before  us,  the 
owner  of  the  mine  never  liad  any  interest  in  the  personal  property,  and 
'  he  acquired  no  interest  in  it,  as  against  appellant,  by  its  being  affixed 
to  the  realty:  Hendy  v.  Dinkerlioff,  supra;  and  appellant's  lessees 
expressly  reserved  the  right  to  remove  this  machinery.  It  must  result 
tliat  respondent  secured  no  lien  upon  this  personal  property  by  virtue 
of  the  statute,  for  he  could  only  have  a  lien  upon  tlie  property  of  the 
owner  of  the  mine.  Any  other  view  of  the  matter  would,  we  think, 
greatly  retard  development,  especially  of  mining  property,  wliere  it 
often  becomes  necessary  for  the  owner  or.  his  lessee  to  borrow  or  hire 
the  use  of  machinery,  which,  for  the  time  being,  in  order  to  utilize  it, 
must   be   attixed    to    the    realty.      No    one   would    have   tlie   temerity    to 


401  EXTENT    OP    LIENS.  §  445 

Effect  of  amendment  of  1907.     The   amendment  of  the 
statute,  however,  has  changed  this  rule,  under  certain  con- 
ditions, by  requiring  the  filing  of  the  lease  for  record,  or 
the    posting    of   a    notice    of   non-responsibility.      As    thus 
amended,  section  eleven  hundred  and  ninety-two  -^  provides: 
"  And  all  mining  machinery  placed  upon  or  in  any  mining 
claim  or  claims,  or  real  property  used  as  a  mine,  under  a 
lease    or    other    agreement    by    the    terms    of    which    such 
machinery  shall  not  lose  its  identity  as  the  personal  prop- 
erty of  the  lessor,  and  which  is  used  in  the  operation  and 
working  of  such  mining  claim  or  claims,  or  real  property 
used  as  a  mine,  shall  be  deemed  to  be  a  fixture  attached  to 
such  mining  claim  or  claims,  or  real  property  used  as  a 
mine,  for  the  purposes  only  of  the  lien  hereinbefore  men- 
tioned, and  shall  be  subject  to  such  lien,  unless  such  lessor 
shall  within  ten  days  after  such  machinery  shall  have  been 
delivered  at  such  mining  claim  or  claims,  or  real  property 
used  as  a  mine,  file  and  record  such  lease  or  other  agree- 
ment in  the  office  of  the  county  recorder  of  the  county  in 
which  such  machinery  shall  be  used  as  aforesaid;  or  within 
said  ten  days  shall  post  a  notice  in  some  conspicuous  place 
in  some  building  on  said  mining  claim  wherein  said  machin- 
ery is  to  be  used,  stating  therein  that  said  machinery  is  the 
property  of  said  lessor  and  has  been  leased  or  contracted 
to  be  sold  to  the  person  operating  said  mine,  and  that  said 
machinery  will  not  be  liable  for  any  lien  provided  for  in 
this  chapter." 

loan  or  hire  machinery  to  another  person  for  such  purposes  if  he  had 
to  take  the  risk  of  losing  his  property  through  the  liens  of  laborers 
or  material-men  working  in  or  supplying  material  to  the  mine.  Tlie 
courts  find  no  difficulty  in  upholding  the  rights  of  a  vendor  undei-  a 
conditional  sale  of  personal  property  as  against  the  creditors  of  the 
vendee,  for  the  reason  that  the  title  remains  in  the  vendor;  and  we 
can  see  no  reason  why  the  rule  should  not  be  the  same  where  tlie 
owner  of  the  personal  property  hires  or  leases  it.  The  fallacy  of 
respondent's  position  is  in  assuming  that  the  situation  of  the  personal 
property  in  its  relation  to  the  realty  is  the  sole  criterion  by  which 
to  judge  of  its  character;  whereas  'the  intention  with  which  an 
article  of  per.«onal  property  is  attached  to  the  realty,  whether  for 
temporary  or  permanent  improvement,  has,  within  certain  limits,  quite 
as  much  to  do  with  the  determinntion  of  the  question  whetlier  it  has 
thereby  become  a  permanent  fixture,  as  has  the  way  and  manner  in 
which  it  is  attached':  1  Jones  on  Mortgages,  §429":  .Jordan  v.  Myres 
126  Cal.   56.5.   569,   58   Pac.  Rep.   1061. 

2'  Kerr's  Cyc.  Code  Oiv.  Proc,  §  1192,  as  amended  1907,  Kerr's  Stats, 
and  Aiiiflts.  1!»0«-0r,  p.   481. 
Mech.  Liens  —  26 


§§  446, 447  mechanics'  liens.  402 

§  446.  Same.  Grading  and  other  work.  Lot.  The  stat- 
ute -*  provides  that  the  person  grading  or  doing  certain 
other  work  upon  a  lot  in  an  incorporated  city  shall  have  a 
lien  upon  the  lot.  Under  this  section  the  lien  is  not  lim- 
ited to  any  artificial  subdivision  upon  the  surface  of  the 
earth,  or  to  any  official  designation  upon  the  map,  but  its 
meaning  includes  whatever  territory  is  owned  by  the  per- 
son, which  he  may  cause  to  be  graded  under  a  single  con- 
tract, and  may  include  two  blocks  of  land  in  a  city,  which 
were  held  to  be  a  "  lot  "  within  the  meaning  of  the  section.^^ 

§  447.  Property  viewed  as  an  entirety.^**  The  property, 
viewed  as  an  entirety,  or  the  relation  of  the  object  upon 
which  the  work  is  done  to  the  "  property  "  subject  to  the 
lien,  is  closely  akin  to  the  subject  last  discussed.  In  the 
preceding  sections,^^  the  matter  was  considered  from 
the  point  of  view  of  the  extent  of  land ;  in  this  place  it  will 
be  regarded  from  the  point  of  view  of  whole  and  part,  or 
the  property  contemplated  as  a  structural  unity.^* 

*«  Kerr's  Cyc.  Code  Civ.  Proc,  §  1191. 

25  Warren  v.  Hopkins,  110  Cal.  506,  42  Pac.  Rep.  986. 

Oregon.  "  The  word  '  lot,'  when  applied  to  real  estate,  is  indefinite 
in  its  dimensions,  but  is  a  portion  of  land  that  has  been  set  off  or 
allotted,  whether  great  or  small.  .  .  .  The  legislature  must  have 
intended  to  use  the  term  'lot'  in  the  sense  of  a  city  as  contradis- 
tinguished from  a  rural  lot."  It  is  to  be  understood,  in  the  sense  of  a 
city  lot,  as  bounded  and  described  on  the  recorded  plats  of  the  city, 
or  as  subdivided  and  bounded  by  conveyances  of  the  owners  them- 
selves, or  by  other  acts  done  by  themselves  or  the  city  autliorlties  in 
exercising  the  right  of  eminent  domain  in  opening  and  establishing 
streets;  but  no  lien  was  given  for  grading  a  ten-acre  tract  in  a  city: 
Pilz  V.  Killingsworth,  20  Oreg.  432,  433,  26  Pac.  Rep.  305  (construing 
"lot"  as  used  in  §  3676,  Hill's  Code,  similar  to  §  1191,  Kerr's  Cyc.  Code 
Civ.  Proc.). 

2*  See,  generally,  as  to  buildings  and  other  property  subject  to  me- 
chanics' liens,   note  78  Am.   Dec.   694. 

="  See  §§  438  et  seq.,  ante. 

^"^  It  has  already  been  seen  that  the  claim  of  Hen  should,  in  general, 
be  filed  against  a  structure  as  an  entirety:  See  §§  399  et  seq.,  ante. 
This  discussion  may  therefore  seem  a  repetition;  but  the  thing  against 
which  the  claim  of  lien  must  be  directed  is  not  necessarily  the  entire 
thing  to  which  the  lien  extends:    See  "  Object,"  §§  166  et  seq.,  ante. 

Colorado.  WHiere  several  structures  erected  on  a  lot  of  land  are 
designed  for  a  united  enjoyment,  the  law  treats  them  as  a  unit  in 
relation  to  the  liens  which  it  gives,  and  althougli  the  work  was  per- 
formed on  one,  the  lierj  extends  to  the  whole  lot:  Cary  H.  Co.  v. 
McCarty,  10  Colo.  App.  200,  218,  50  Pac.  Rep.  744.  See  Small  v.  Foley, 
8  Colo.  App.  435,  47  Pac.  Rep.  64. 

Oregon.  As  to  structures  upon  separate  parcels  of  land,  see  Wil- 
lamette S.  M.  L.  &  M.  Co.  V.  Shea,  24  Oreg.  40,  32  Pac.  Rep.  759. 


403  EXTENT    OF    LIENS.  §  -I-IT 

The  general  rule  with  reference  to  the  subject  discussed 
in  this  section  is,  that  the  lien  extends  to  the  structure 
as  an  entirety.^^ 

Railroad.  Thus  the  lien  extends  to  an  entire  railroad, 
and  not  merely  to  the  section  of  the  road  on  whicli  the 
work  was  done.^° 

Machine.  So  where  a  machine  becomes  a  fixture,  the 
work  done  upon  and  materials  furnished  for  it  are  regarded 
as  done  and  furnished  for  the  building  or  structure."^ 

Lien  on  portion  of  a  structure.  There  is  no  provision  for 
a  lien  upon  a  i)ortion  of  a  I)uikling,  or  for  the  sale  of  a  part 
of  a  building  to  satisfy-  a  lien  upon  the  whole.^- 

2»  WiUamette  S.  M.  Co.  v.  Kremer,  94  Cal.  205,  211,  29  Pac.  Rep.  633. 
See  Ellison  v.  Jackson  W.  Co.,  12  Cal.  542,  554;  Horn  v.  Jones,  28  Cal. 
195,    204. 

Montana.  The  lien  is  not  restricted,  as  against  a  lessor,  to  the 
precise  materials  furnished,  but  extends  to  the  entire  building  erected 
by  the  lessee:  Montana  L.  &  Mfg.  Co.  v.  Obelisk  M.  &  C.  Co.,  15  Mont. 
20,   37  Pac.   Rep.   897. 

New  Mexico.  Mountain  E.  Co.  v.  Miles,  9  N.  M.  512,  56  Pac.  Rep. 
284,  285. 

Ore^^ou.  So  the  lien  was  given  upon  a  mill  for  work  done  upon  a 
dam,  or  breakwater  attached  thereto;  for  a  mill  made  to  run  by 
hydraulic  power  would  be  worthless  without  the  structures  necessary 
to  secure  and  obtain  the  water,  and  the  labor  bestowed  upon  such 
structures  is  of  the  same  utility  and  importance  to  the  owner  of  the 
mill  as  the  labor  put  into  the  mere  building.  Whatever  enters  into 
or  is  connected  with  the  mill,  essential  to  its  use,  ought  to  be  treated, 
under  the  statute,  as  a  part  of  said  mill:  Willamette  Falls  T.  &  M.  Co. 
V.  Remick,  1  Oreg.  169. 

Utah.  Where  lumber  is  delivered  under  one  contract,  for  structures 
all  erected  on  the  same  piece  of  ground,  to  be  used  together  in  prose- 
cuting the  business  of  smelting,  a  lien  exists  upon  the  entire  premises 
for  the  lumber  used  in  each  structure,  and  one  lien  can  be  created 
thereon  for  the  security  of  the  entire  bill:  Salt  Lake  L.  Co.  v.  Ibex 
M.  &  S.  Co.,  15  Utah  440,  49  Pac.  Rep.  832. 

■•"  Cox  V.  Western  Pac.  R.  Co.,  44  Cal.  18,  28;  Bringham  v.  Knox,  127 
Cal.  40,  43,  59  Pac.  Rep.  198.  See  Stevenson  v.  Woodward,  3  Cal.  App. 
754,  86  Pac.  Rep.  990. 

Am  tit  application  of  nieolianlcH'  liens  to  railroads,  see  7  Am.  &  Eng. 
Ann.  Cas.   269. 

Oregon.  But  see  Giant  Powder  Co.  v.  Oregon  Pac.  R.  Co.,  42  Fed. 
Rep.  470,  474,  8  L.  R.  A.   700,  and  see  note  34,  this  chapter,  post. 

fjien  iiKiy  fllert  against  an  extension  of  a  railroad  only:  Ban  v. 
Columbia  S.  R.  Co.,   117  Fed.  Rep.   21,  reversing  s.  c.   109  Fed.  Rep.  499. 

See  §  4  49,   post. 

"   Donahue  v.  Cromartie,   21  Cal.   80,   86. 

See   "Fixtures,"   §§95,    185   et  seq.,   ante. 

New  Mexico.     Post  v.  Miles,  7  N.  M.  317,  327,  34  Pac.  Rep.  586. 

==  Willamette  S.  M.  Co.  v.  Kremer,  94  Cal.  205,  211,  29  Pac.  Rep.  633; 
Brunner  v.  Marks,  98  Cal.  374,   33  Pac.  Rep.   265. 

Colorado.     See   Small   v.   Foley,   8   Colo.   App.   434,    443. 

Washington.      Wright  v.  Cowie,   5   Wash.   341,   31    Pac.   Rep.   878. 


§§  448, 449  mechanics'  liens.  404 

§  448.     Same.     Distinct  objects  on  one  parcel  of  land.    In 

the  case  of  '*  structures,"  where  the  labor  is  done  and  mate- 
rial is  furnished  by  subclaimants  for  a  separate  and  distinct 
object  of  tlie  labor,  which  is  part  of  that  to  be  performed 
under  an  original  contract,  the  lien  is  confined  primarily  to 
the  object  upon  which  the  particular  work  was  done.  Thus 
where  liens  are  claimed  by  subclaimants  for  labor  done  and 
materials  furnished  in  the  improvement  and  construction  of 
additions  to  an  old  building,  upon  part  of  the  lot,  although 
the  contract  includes  the  erection  of  another  and  new  build- 
ing upon  another  part  of  the  same  lot  upon  which  other 
liens  are  claimed,  the  former  liens  properly  extend  to  the 
old  building  only.^* 

§  449.  Same.  Railroads,  canals,  gas-works  and  water- 
works. It  is  sometimes  difficult,  Avithin  the  rules  laid  down 
in  the  preceding  sections,  to  determine  what  the  "  structure 
as  an  entirety  "  is,  especially  in  the  case  of  railroads,  canals, 
gas-works  and  water-works,  and  the  like,  where  a  number 
of  structures  and  connecting  links  may  be  involved,  each 
case  depending  for  its  solution  upon  its  own  peculiar  facts; 
and  the  subject  is  full  of  peculiar  difficulty.^*     With  refer- 

33  Brunner  v.  Marks,  98  Cal.  374,  376,  33  Pac.  Rep.  265. 

As  to  material  furnished  for  grouii  of  biiilding.'.s,  see  2  Am.  &  Sng. 
Ann.  Cas.   683. 

^*  In  this  connection  the  supreme  court  (speaking  of  Cox  v.  Western 
Pac.  R.  Co.,  supra),  has  said:  "  Under  the  facts  sliown,  the  lien  could 
not  attach  to  a  portion  of  the  road,  and  the  court  said:  "  It  would 
render  the  statute  absurd  to  liold  that  one  contractor  or  subcontractor 
could  acquire  a  lien  upon  a  bridge,  another  upon  a  tunnel,  and  a  third 
upon  a  culvert,  all  of  which  constitute  portions  of  a  railroad.'  The 
contention  of  appellants  would  require  a  lien  for  erecting  a  depot 
building  to  replace  one  destroyed  by  fire,  or  a  bridge  washed  away  by 
flood  and  belonging  to  a  company  operating  a  railroad  already  com- 
pleted and  in  operation,  to  claim  a  lien  upon  the  entire  system,  how- 
ever extensive,  of  which  the  depot  or  bridge  formed  a  part.  But  we 
do  not  think  this  is  the  correct  meaning  of  the  statute:  Hill  v.  La 
Crosse  &  M.  R.  Co.,  11  Wis.  223,  80  Am.  Dec.  783,  where  a  lien  was 
upheld  upon  a  railroad  depot  building  and  the  lot  on  which  it  stood; 
Purtell  V.  Chicago  P.  &  B.  Co.,  74  Wis.  132,  42  N.  W.  Rep.  265,  where  a 
lien  upon  a  railroad  bridge  was  held  good.  So  far  as  any  principle 
found  in  Midland  R.  Co.  v.  Wilcox,  122  Ind.  84,  23  N.  E.  Rep.  506,  may 
have  any  analogy  to  the  principle  involved  here,  that  case  seems  to  me 
unfavorable  to  appellant's  contention.  The  railway  company  owned 
the  line  from  Anderson  to  Lebanon,  only  a  portion  of  which  (Anderson 
to  Noblesville)  was  completed  and  in  operation;  from  Noblesville  to 
Lebanon    it    was    incomplete    and    was    under    construction.      For    the 


405  EXTENT    OF    LIENS.  §  449 

enee  to  railroads,  many  of  the  eases  are  based  upon  the 
particular  language   of  the   state   statutes;   some   upon   the 

work  on  this  latter  section  the  lien  was  filed,  and  on  this  section  alone. 
The  lien  was  sustained  on  the  uncompleted  portion  of  the  road.  Of 
the  cases  dealing-  with  water-works,  gas-works,  and  the  like,  tliat  of 
National  F.  &  P.  Works  v.  Oconto  Water  Co.,  52  Fed.  Rep.  43,  affirmed 
59  Fed.  Rep.  19,  is  a  fair  illustration.  The  lien  claimant  had  fur- 
nished the  pipe  for  the  water  system  of  the  city  of  Oconto,  which  had 
been  laid  in  the  streets  and  connected  with  the  pumping-works  and 
well  of  defendant.  This  and  like  cases  are  examples  of  continuous  and 
contemporaneous  works,  and  are  also  examples  where,  of  the  works 
comprising-  the  '  structure,'  each  is  useless  without  the  other,  or 
where  they  are  so  interdependent  and  intimately  related  that  they 
must  be  reg-arded  as  an  entirety. 

"  Here,  however,  the  Bear  Valley  reservoir  had  been  in  use  long 
before  the  Santa  Ana  canal  [upon  divisions  1  and  2  of  which  the  lien 
was  claimed]  was  projected,  and  so  also  had  the  Alessandro  pipe  line 
[running  from  division  2  to  the  end  of  the  proposed  division  3].  The 
division  3  of  the  projected  canal  was  graded  in  disconnected  parts, 
but  there  remained  yet  to  be  obtained  rights  of  way,  without  which 
completion  was  impossible,  and  finally  work  on  this  division  was 
abandoned,  and  the  whole  property  passed  into  the  hands  of  receivers,, 
and  no  work  has  been  done  on  this  division  since  September,  1893,  so 
far  as  we  know.  We  find  no  case  among  those  cited  by  appellants 
parallel  in  its  facts  with  the  case  before  us,  and  no  principle  upon 
W'hich  their  view  of  the  matter  can  be  upheld. 

"  Respondent  relies  upon  South  Fork  Canal  Co.  v.  Gordon,  73  U.  S. 
(6  Wall.)  561,  bk.  18  L.  ed.  894,  as  conclusive  against  appellants'  con- 
tention that  the  lien  should  extend  over  the  Alessandro  pipe  line. 
Just  why  appellants  should  insist  that  respondents  are  entitled  to  no 
lien  at  all  because  they  have  asked  it  on  too  little  of  appellants'  prop- 
erty might  challenge  inquiry.  But,  aside  from  this,  we  think  the  facts 
here  bring  the  case  within  the  principles  discussed  and  decided  in  the 
case  last  cited.  From  a  reservoir  near  Placerville  a  canal  or  flume 
extended  to  the  South  Fork  of  the  American  River  —  about  twenty- 
five  miles.  When  the  contract  with  Gordon  was  entered  into,  the 
fiume  was  completed  from  the  reservoir  to  Long  Canon  —  eleven  and 
two  thirds  miles.  TVater  flowing  through  it  was  used  by  means  of 
several  outlets  for  mining  purposes.  It  was  fed  from  sources  other 
than  the  South  Fork.  Gordon  s  contract  was  for  the  extension  of  this 
canal.  The  work  commenced  where  the  existing  work  ended,  and 
reached  to  the  South  Fork  of  the  American  River,  the  object  being  to 
make  use  of  that  river  as  a  feeder,  and  to  increase  the  -water-supply. 
They  were  distinct  works,  as  having  been  completed  at  different 
times  and  by  different  contractors,  and  the  upper  section  had  already 
been  in  use.  The  points  of  identity  were  continuity  and  a  common 
object,  use,  and  ownership.  The  court  below  held  that  Gordon  had  a 
lien  on  the  entire  length  of  the  canal.  On  appeal,  the  supreme  court 
reversed  the  decree,  holding  that  the  lien  extended  only  to  that  por- 
tion of  the  canal  constructed  by  him.  The  Alessandro  pipe  line  was 
already  in  use,  and  -nas  fed  by  water  from  Mill  Creek,;  it  was  no  part 
of  the  plan  to  supply  this  pipe  from  the  canal — on  the  contrary,  the 
plan  was  to  abandon  the  pipe  line.  Besides,  it  was  totally  inadequate 
to  carry  the  water  of  the  canal,  and  would  have  been  useless  wlien 
the  canal  was  completed,  unless  used  to  carry  the  water  of  Mill  Creek, 
in  which  case  it  would  have  been  distinct  from  the  canal.  .  .  .  We 
cannot  perceive  upon   what  principle   the   lien   should   be   made   com- 


§  449  mechanics'  liens.  406 

ground  of  public  policy  supposed  to  exist  in  certain  states 
against  giving  a  lien  upon  different  sections  of  a  railroad, 
and  upon  the  theory  that  it  is  an  entirety,  and  that  there  can 
be  no  severance  or  dislocation  of  the  road  as  a  unit. 

pulsory  as  to  division  3,  or  wliy  it  should  be  lost  entirely  because  not 
claimed  on  the  pipe  line.  Division  3  is  not  only  incomplete,  but  there 
remain  rights  of  way  to  be  obtained,  without  which  the  surveyed  line 
and  the  work  done  have  no  value  or  utility.  No  one  can  say  that  it 
ever  will  be  completed,  and  if  so  completed,  it  yet  remains  to  com- 
plete division  4,  to  make  division  3  of  value.  The  pleading-s  and  liens 
[with  two  aspects  —  against  divisions  1,  2,  and  3,  and  against  divisions 
1  and  2]  would  justify  our  holding  that  this  division  might  be  in- 
cluded, but  we  see  no  reason  for  compelling  plaintiff  to  so  extend  its 
claim;  nor  do  we  see  any  legal  ground  upon  which  to  do  so":  Pacific 
R.  M.  Co.  v.  Bear  Valley  Irr.  Co.,  120  Cal.  94,  99,  101,  52  Pac.  Rep.  136, 
65    Am.    St.    Rep.    158. 

The  materials  were  furnislied  for  divisions  1  and  2,  and  the  judg- 
ment foreclosed  the  lien  on  divisions  1  and  2.  The  defendant  let  the 
work  by  separate  contracts  on  each  of  the  divisions,  and  not  by  an 
entire  contract  for  the  whole  work.  This  case  contends  that  no  doubt 
was  cast  by  Brooks  v.  Burlington  &  S.  W.  R.  Co.,  101  U.  S.  443,  bk.  25 
L.  ed.  1057,  on  South  Fork  Canal  Co.  v.  Gordon,  supra.  See  also  Giant 
Powder  Co.  v.  Oregon  Pac.  R.  Co.,  42  Fed.  Rep.  470,  474,  8  L.  R.  A.  700. 

Colorado.  See  Arkansas  River  L.  K.  &  C.  Co.  v.  Flinn,  3  Colo.  App. 
381,   383,  33  Pac.  Rep.   1006    (canal),   (1889). 

Idaho.  Separate  and  distinct  canal  built  subsequently  to  main 
canal,  and  part  of  a  system  of  canals,  held  subject  to  the  lien,  inde- 
pendently of  the  rest  of  the  system:  Creer  v.  Cache  Valley  C.  Co.,  4 
Idaho  280,  38  Pac.  Rep.  653,  95  Am.  St.  Rep.  63. 

Nevada.  Unconnected  mines:  See  Salt  Lake  H.  Co.  v.  Chainman 
M.  &  E.  Co.,  137  Fed.  Rep.  632. 

Oregon.  A  single  lien  upon  separate  buildings  is  allowed  when 
they  are  erected  for  any  common  purpose  or  connected  use,  as  in  the 
case  of  barns,  stables,  and  other  outhouses  within  the  curtilage  of  a 
dwelling,  and  used  in  connection  with  it,  or  where  the  buildings  have 
been  erected  for  some  general  and  connected  use:  Willamette  S.  M.  L. 
&  M.  Co.  v.  Shea,  24  Oreg.  40,  47,  32  Pac.  Rep.  759;  Willamette  Falls 
Co.  v.  Remick,  1  Oreg.  169,  170.  See  Dalles  L.  &  M.  Co.  v.  Wasco 
Woollen  M.  Co.,  3  Oreg.  527  (under  an  early  statute  giving  a  lien  upon 
"the  building"  upon  which  tlie  labor  was  done). 

In  Pacifle  Rolling  31ills  Co.  v.  James  Street  Construction  Co.,  68  Fed. 
Rep.  966,  970.  16  C.  C.  A.  68.  29  U.  S.  App.  698,  it  was  contended  that 
material  furnished  for  a  street-railway  could  form  the  basis  of  a  lien 
upon  the  power-house.  The  court,  however,  said:  "It  is  said  that  the 
road  and  power-house  are  one,  and  indissolubly  connected;  that  the 
cable-railway  is  Incapable  of  operation,  except  in  connection  with  the 
power-house  wherein  the  cable  is  operated,  and  whereby  all  the  move- 
ments of  cars  is  accomplished;  that  the  road  without  the  power-house, 
and  the  power-house  without  the  road,  are  equally  important  to 
accomplish  results,  ana  that  notwithstanding  the  fact  that  the  appel- 
lant has  furnished  no  material  for  the  power-house,  it  has  a  lien 
thereon,  from  the  fact  that  it  has  furnished  material  for  the  railway 
track,  which  is  so  intimately  and  necessarily  connected  therewith.  .  .  . 
In  a  certain  sense,  it  is  tru6  that  the  cable-road  in  the  street  and  the 
power-house  on  the  lots  are  so  intimately  connected  that  the  one  may 
be   said   to   be   appurtenant   to    the    other.      But,    by    the   terms    of   the 


407  EXTENT   OP    LIENS.  §  450 

§  450.  Same.  Lien  on  building  alone.  False  represen- 
tations as  to  ownership.  When  a  contractor  falsely  repre- 
sents himself  to  his  subclaimants  as  the  owner  of  the  land, 
they  have  a  right  of  lien  only  against  the  building  for  which 
they  have  furnished  labor  or  materials,  and  the  structure 
may  be  severed  and  sold,  in  the  absence  of  any  showing  that 

statute  [1  HiU's  Code,  §§  1663,  1665],  no  reference  is  made  to  appur- 
tenances, and  no  lien  is  expressly  created  therefor,  and  there  is  noth- 
ing in  its  provisions,  or  in  the  interpretation  given  thereto  by  the 
state  courts,  to  justify  the  court  now  in  holding  that  it  contemplates 
a  lien  upon  a  building,  or  upon  tlie  lot  upon  which  it  stands,  for 
materials  furnished  in  the  construction  of  appurtenances  not  included 
In  the  contract  for  the  construction  of  the  building,  nor  situate  upon 
land  in  which  the  owner  of  the  building  has  an  interest.  The  cases 
relied  upon  by  the  appellant's  counsel  come  short  of  sustaining  the 
doctrine  on  which  his  contention  rests.  In  Beatty  v.  Parker,  14  Mass. 
523,  526,  6  N.  E.  Rep.  754,  a  drain-pipe,  extending  from  the  cellar  of  a 
house  through  tiie  cellar-wall  and  the  yard  and  the  street  into  a 
sewer,  the  construction  of  which  was  included  in  the  contract  for 
building  the  house,  was  held  to  be  a  part  of  the  house,  and  it  was  held 
that  a  lien  was  provided  therefor  under  the  lien  law,  and  that  it  was 
immaterial  that  the  title  to  the  street  is  not  in  the  owner  of  the  house. 
But  the  decision  was  based  upon  the  fact  that  a  portion  of  the  drain- 
pipe was  in  and  was  a  part  of  the  house  on  which  the  lien  was 
attempted  to  be  enforced,  and  was  included  in  the  contract  for  its 
construction.  In  this  respect  the  facts  differ  materially  from  those  in 
the  case  at  bar.  In  Badger  L.  Co.  v.  Marion  W.  S.,  E.  L.  &  P.  Co.,  48 
Kan.  182,  29  Pac.  Rep.  476,  15  L.  R.  A.  652,  it  was  shown  that  the  de- 
fendant company  owned  land  on  which  was  a  building  and  machinery 
for  generating  electricity  to  be  used  in  connection  with  its  electric 
wires  and  poles,  which  it  had  placed  through  the  streets,  under  a 
franchise  therefor.  The  plaintiff  furnished  poles  to  support  the  wires 
in  the  streets.  It  was  held  that  he  had  a  lien  on  the  lots  on  which  the 
building  and  machinery  were  situated,  but  it  was  so  expressly  decided 
under  the  language  of  the  Kansas  statute,  which  provided  liens  for 
materials  furnished  to  'any  building,  or  to  the  appurtenance  of  any 
building';  and  it  was  found  by  the  court  that  the  wires  and  poles 
were  appurtenances  to  the  building.  But  in  Parmalee  v.  Hambleton, 
19  111.  614,  in  a  case  where  a  house,  and  vault  under  the  sidewalk  of  a 
street,  were  constructed  under  a  single  contract,  it  was  held  that  the 
vault,  although  an  appurtenance  to  the  house,  was  not  subject  to  a 
mechanic's  lien,  under  a  statute  which  conferred  a  lien  upon  any  one 
who,  under  a  contract  with  the  owner  of  a  lot,  should  furnish  '  labor 
or  materials  for  erecting  or  repairing  any  building  or  tlie  appurte- 
nances of  any  building  on  such  land  or  lot."  The  court  said:  '  This 
certainly  means  that  both  the  building  and  appurtenance  should  be 
upon    the    lot.'  " 

In  Giant  I'owder  Co.  v.  Oreg«»u  Pacific  H.  Co.,  42  Fed.  Rep.  470,  474, 
8  L.  R.  A.  700,  it  was  said:  "If  the  effect  of  the  transaction  is  to  give 
the  plaintiff  a  lien  on  the  whole  road,  it  may  sell  the  whole  road.  But 
my  own  judgment  is,  that,  even  if  the  plaintiff  might  claim  a  lien 
upon  the  whole  road,  it  may,  nevertheless,  limit  its  lien  by  its  notice 
to  the  part  or  section  of  the  road  for  the  construction  of  which  it 
furnished  the  material."  See  also  Ban  v.  Columbia  S.  R.  Co.,  117  Fed. 
Rep.  21,  54  C.  C.  A.  407,  reversing  s.  c.  109  Fed  Rep.  499. 


§  451  mechanics'  liens.  408 

its  removal  would  in  any  wise  injure  the  land.  It  is  only 
when  the  laud  belongs  to  the  person  who  caused  the  build- 
ing to  be  constructed,  or  who  had  an  interest  therein,  that 
such  land  or  interest  may  also  be  charged,  the  lien  on  the 
building  being  the  principal  thing.^^ 

§  451.  Same.  Mining  claims  and  mines.  In  considering 
the  question  of  the  extent  of  the  lien,  "  mining  claims  "  and 
mines  must  be  carefully  distinguished  from  "  structures."  ^® 
The  statute  ^^  provides  that  any  person  who  performs  labor 
in  any  mining  claim  or  claims,  or  in  or  upon  any  real  prop- 
erty worked  as  a  mine,  has  a  lien  upon  the  same,  and  the 
works  owned  and  used  by  the  owners  for  reducing  the  ores 
from  said  mining  claim  or  claims,  or  real  property  so  worked 
as  a  mine,  for  the  work  or  labor  done  or  materials  furnished 
by  each,  respectively.^^ 

The  general  rule  in  reference  to  mining  claims  is,  that  the 
lien  extends  to  the  claim  as  an  entirety,  and  that  a  lien  can- 
not be  filed  against  a  portion  thereof;  for  example,  the 
portion  upon  which  the  work  was  done  or  for  which  the 
materials  were  furnished,  as  the  pit,  shaft,  or  quarry  alone. ^^ 
A  lien,  likewise,  cannot  be  claimed  upon  a  structure  which  is 
part  of  a  larger  structure,  or  part  of  the  entire  property  in 
a  mining  claim;   the  lien  extends  to  and  must  be  filed  upon 

'5  Linck  V.  Meikeljohn,  2  Cal.  App.  506,  508,  84  Pac.  Rep.   309. 

'«  Pacific  R.  M.  Co.  v.  Bear  VaUey  Irr.  Co.,  120  Cal.  94,  98,  52  Pac. 
Rep.  136,  65  Am.  St.  Rep.  158;  Williams  v.  Mountaineer  G.  M.  Co..  102 
Cal.  134,  139,  34  Pac.  Rep.  702,  36  Id.   388. 

See  §  182,  ante. 

Montana.  See  Big  Blackfoot  M.  Co.  v.  Bluebird  M.  Co.,  19  Mont.  454, 
458,  48  Pac.  Rep.  778. 

"  Kerr's  Cye.  Code  Civ.  Proc,  §  1183. 

^  Helm  V.  Ciiapman,  66  Cal.  291.  292.  5  Pac.  Rep.  352,  5  West  Coast 
Rep.  127. 

Material-man  not  limited  to  separate  structure  in  mininjs^  claim  on 
which  the  repairs  were  made,  but  he  has  a  lien  upon  the  whole  mining 
claim  for  the  materials  to  be  used  and  actually  used  on  the  same: 
Silvester  v.  Coe  Q.  M.  Co.,  80  Cal.  510,  511.  22  Pac.  Rep.  217. 

Colorado.  Lien  allowed  on  whole  mining  property  for  labor  and 
material  in  constructing  a  house  contiguous  to  and  for  use  of  mine: 
Keystone  M.  Co.  v.  Gallagher.  5  Colo.  23   (1872). 

Oregon.  But  as  to  tramway,  mill,  and  mine  not  being  an  "  entire  " 
structure,  so  as  to  require,  claim  against  mine  also  for  work  on  mill 
and  tramway,  see  W'atson  v.  Noonday  M.  Co„  37  Oreg.  287,  60  Pac.  Rep. 
994. 


409  EXTENT    OF    LIENS.  §  452 

the  whole  mining  claim,  and  not  only  to  the  mill,  tramway, 
boarding-house,  and  reduction-works  upon  the  claim. ^^ 

§  452.  The  lien  as  limited  by  contract.*^  This  section  and 
the  following  one  relate  not  only  to  original  contracts,  but 
also  to  contracts  of  all  lien  claimants.  It  has  already  been 
fully  shown  *^  that  where  there  is  a  valid  original  contract 
subclaimants  are  bound  by  the  terms,  covenants,  and  condi- 
tions of  the  same.*2    It  is  not  intended  at  this  point  to  discuss 

^'>  WiUiams  v.  Mountaineer  G.  M.  Co.,  102  Cal.  134,  138,  34  Pac.  Rep. 
702,  36  Id.  388.  See  Hamilton  v.  Delhi  M.  Co.,  118  Cal.  148,  151,  50  Pac. 
Rep.  378;  Tredinnick  v.  Red  Cloud  Consol.  M.  Co.,  72  Cal.  78,  84,  13  Pac. 
Rep.  152;  Malone  v.  Big-  Flat  G.  M.  Co.,  76  Cal.  578,  583,  18  Pac.  Rep. 
772:  Jordan  v.  Myres,  126  Cal.  565,  567,  58  Pac.  Rep.  1061. 
See  §§  130  et  seq..  §§  185  et  seq.,  ante. 

Oregon.  See  Watson  v.  Noonday  M.  Co.,  37  Oreg-.  287,  60  Pac.  Rep. 
994,  996. 

«  See  also  §§45  et  seq.;  "Subcontractor,"  §§66  et  seq.;  "Material- 
man," §§  77  et  seq.;  "Laborers,"  §§  104  et  seq.;  "Valid  Contract,"  §§  286 
et  seq.;  "Effect  of  Validity  of  Contract,"  §§315  et  seq.;  and  "Aban- 
donment," §  358,  ante.  See  Chappius  v.  Blankman,  128  Cal.  362,  365, 
60  Pac.  Rep.  925. 

Colorado.  See  Groth  v.  Stahl,  4  Colo.  App.  8,  30  Pac.  Rep.  1051; 
Ditto  V.  Jackson,   3  Colo.  App.  281,  282,  33  Pac.  Rep.   81. 

Lien  elaiuied  as  against  the  Interest  of  a  minor:  See  Seely  v.  Neill 
(Colo.),   86  Pac.  Rep.  334. 

Receiver.  Claimants  furnishing  labor  or  materials  for  a  receiver 
of  a  mine  are  presumed  to  know  whether  or  not  he  possesses  the 
powers  which  he  assumes  to  exercise;  and  the  expenses  of  a  receiver, 
even  if  he  was  acting  under  an  order  of  court  specifically  empowering 
him  to  carry  on  such  business,  cannot  be  satisfied  out  of  the  property, 
to  the  prejudice  of  those  holding  prior  subsisting  liens:  Hendrie  &  B. 
Mfg.  Co.   V.   Parry   (Colo.),   86  Pac.  Rep.    113. 

Ha^Yaii.     See  Hackfeld  v.  Hilo  R.  Co.,  14  Hawn.  448,  451. 

"  See  preceding  note. 

*=>  See  "Valid  Contract,"  §§  286  et  seq.,  ante;  W^alsh  v.  McMenomy, 
74  Cal.  356,  359,  16  Pac.  Rep.  17;  Dingley  v.  Greene,  54  Cal.  333.  336; 
Henley  v.  Wadsworth,  38  Cal.  356,  361  (1862);  Bowen  v.  Aubrey,  22 
Cal.  566.  See  Wilson  v.  Barnard,  67  Cal.  422,  423,  7  Pac.  Rep.  845.  But 
see  Quale  v.  Moon,  48  Cal.  478,  482. 

In  Willamette  Steam  Mills  Lumber  and  Manufacturing  Co.  v.  1ms 
Angeles  College  Co.,  94  Cal.  229,  237,  29  Pac.  Rep.  629,  it  is  .said:  "It  is 
only  'in  case  of  a  contract  for  the  work,'  duly  filed,  that  the  amount 
of  the  lien  is  limited  by  the  contract  price."  This  makes  the  rule 
applicable  to  statutory  original  contracts,  and  narrows  it  more  than 
the  decisions  justify;  but,  limiting  the  language  to  the  matter  dis- 
cussed, namely,  the  effect  of  the  invalidity  of  the  contract,  its  meaning 
is  clear.  See  Stimson  M.  Co.  v.  Braun,  136  Cal.  122,  125,  68  Pac.  Rep. 
481.  89  Am.  St.  Rep.  116,  57  L.  R.  A.  726;  Brill  v.  De  Turk,  ISO  Cal  241 
244,   62   Pac.   Rep.   462. 

Colorado.     See  Aste  v.  Wilson,  14  Colo.  App.  323,  59  Pac.  Rep.  846. 

Utali.  See  Sierra  Nevada  L.  Co.  v.  Whitmore,  24  Utah  130,  66  Pac. 
Rep.  779,  781:    Culmer  v.  Caine.  22  Utah  216.  61   Pac.  Rep.   1008,' 1009. 

Wa.skington.     But  see  Bell  v.  Groves,  20  W^ash.  602,  56  Pac.  Rep  40L 


§§453,454  mechanics'  liens.  410 

in  detail  the  subject  here  considered,  as  it  is  elsewhere 
treated  from  other  points  of  view,  and  reference  thereto  is 
made  in  the  notes. 

§  453.  Same.  Statutory  provision.  The  statute  *^  pro- 
vides that  "  in  case  of  a  contract  for  the  work  between  the 
reputed  owner  and  his  contractor,  the  liens  shall  extend  to 
the  entire  contract  price,  and  such  contract  shall  operate  as 
a  lien  in  favor  of  all  persons,  except  the  contractor,  to  the 
extent  of  the  whole  contract  price,  and  after  all  such  liens 
are  satisfied,  then  as  a  lien  for  any  balance  of  the  contract 
price  in  favor  of  the  contractor."  ** 

§  454.  Same.  General  interpretation  of  provision.  Where 
nothing  is  due  to  the  original  contractor  under  valid  statu- 
tory original  contract,  by  reason  of  full  payments  under  its 
terms,  the  interest  of  the  owner  of  the  structure  therein  is 
not  subject  to  a  lien.*^  No  lien  exists  in  favor  of  subclaim- 
ants  beyond  the  amount  due  under  the  terms  of  a  valid 
contract.  *"     The  aggregate   amount  of  liens,  so  far  as  the 

«  Kerr's  Cyc.  Code  Civ.  Proc,   §  1183,  as  amended  Stats.   1903,  p.   84. 

"  It  has  been  held,  under  a  previous  statute,  that  if  there  is  no 
existing  lien  on  a  valid  original  contract,  none  exists  on  the  subcon- 
tracts: Dingley  v.  Greene,  54  Cal.  333,  336;  Dore  v.  Sellers,  27  Cal. 
588,  594,  596. 

See  §  272,  ante.     But  see  "  Impairment  of  Lien,"  §  284,  ante. 

«  See  Blinn  L.  Co.  v.  Walker,  129  Cal.  62,  61  Pac.  Rep.  664. 

«  O'Donnell  v.  Kramer,  65  Cal.  353,  4  Pac.  Rep.  204;  Turner  v. 
Strenzel,  70  Cal.  28,  30,  11  Pac.  Rep.  389.  See  Nason  v.  John,  1  Cal. 
App.  538,  540,  82  Pac.  Rep.  566. 

Colorado.  Chicago  L.  Co.  v.  Newcomb,  19  Colo.  App.  265,  74  Pac. 
Rep.  786,  789;  Mclntyre  v.  Barnes.  4  Colo.  285.  See  Charles  v.  Hallack 
L.  &  M.  Co.,  22  Colo.  283,  295,   43  Pac.  Rep.  548. 

Ha'«vaii.  The  lien  in  favor  of  the  subcontractor  is  not  limited  to 
the  amount  payable  under  the  original  contract  to  the  principal  con- 
tractor: Allen  V.  Redward,  10  Hawn.  151,  154;  Pacific  H.  Co.  v.  Lin- 
coln, 12  Hawn.  358,  362. 

Nevada.  Contra,  under  act  of  1875:  Lonkty  v.  Cook.  15  Nev.  58; 
Hunter  v.  Truckee  Lodge,  14  Nev.  24,  25,  where  it  was  held  that  sub- 
claimants  had  direct  liens,  regardless  of  payments  made  to  the 
original  contractor  prior  to  the  time  within  which  the  law  required 
notice  of  their  claim  to  be  recorded.  (This  follows  the  "  Pennsylvania 
system,"  as  distinguished  from  the  "  New  York  system,"  the  latter 
being  followed  in  California,  where  there  is  a  valid  contract.) 

Xew  Mexico.  Contra,  Hobbs  v.  Spiegelberg,  3  N.  M.  222,  357,  5  Pac. 
Rep.  529    (same  principle  as  Nevada). 

Oregon.  See  Smith  v.  Wilcox,  44  Oreg.  323,  74  Pac.  Rep.  708,  75  Id. 
710. 


411  EXTENT    OF    LIENS.  §§  455,  456 

owner's  liability  is  concerned,  must  not  exceed  the  price  as 
fixed  by  the  valid  original  contract.*^ 

§  455.  Same.  Contract  as  notice.  This  subject  has  been 
more  fully  considered  in  another  place,  and  what  was  there 
said  will  not  be  repeated  here.*®  A  contract  either  to  lease 
a  mine,  the  property  of  an  estate,  or  to  hire  a  person  to  work 
the  same,  which  is  signed  by  a  person  as  executor,  without 
authority  of  court,  if  it  is  notice  of  anything,  is  notice 
of  everything  it  contains,  and  would  be  notice  to  the  con- 
tractor's laborers,  sufficient  to  prevent  a  lien  upon  the  mine, 
if  known.*® 

§  456.  Same.  Price.  Value.  The  phrase  in  section  eleven 
hundred  and  eighty-three,^°  that  subclaimants  shall  have  a 
lien  "  for  the  value  "  of  the  labor  performed  or  materials  fur- 
nished, is  not  used  in  contradistinction  to  "  price "  or 
"  agreed  value."  It  was  not  the  intention  that  the  contractor, 
material-man,  or  laborer  who  contracts  for  a  certain  sum 
should  have  a  lien  for  a  greater  sum,  upon  the  ground  that 
the  value  of  what  he  did  or  furnished  is  greater.  "  It  is 
probably  true  that  where  a  subcontractor,  material-man,  or 

Washington.  The  Nevada  and  New  Mexico  rule  was  foHowed  under 
the  code  of  1881,  and  the  California  rule  was  rejected:  Spokane  Mfg. 
&  L.  Co.  V.  McChesney,  1  Wash.  609,  21  Pac.  Rep.  198. 

Wyoming.  See  Davis  v.  Big  Horn  L.  Co.,  14  Wyo.  517,  85  Pac.  Rep. 
980. 

"  Whittier  v.  WMlbur,  48  Cal.  175,  177;  Wilson  v.  Barnard,  67  Cal. 
422,  423,  7  Pac.  Rep.  845;  Dore  v.  Sellers,  27  Cal.  588,  594  (1862); 
Pacific  M.  L.  Ins.  Co.  v.  Fisher,  106  Cal.  224,  233,  39  Pac.  Rep.  758.  See 
Wig-g-ins  V.  Bridge,  70  Cal.  437,  439,  11  Pac.  Rep.  754;  Gibson  v. 
Wheeler,  110  Cal.  243,  245,  42  Pac.  Rep.  810;  California  I.  C.  Co.  v. 
Bradbury,  138  Cal.  328,  330,  71  Pac.  Rep.  346,  617.  See  also  "Notice," 
|§  547  et  seq.,  post. 

See  §§  284,  285,  ante. 

Oregon.  But  see  Watson  v.  Noonday  M.  Co.,  37  Oreg.  287,  60  Pac. 
Rep.  994,  996  (under  Hill's  Ann.  Laws,  §3678;  liability  on  payments 
made  by  owner  to  others  than  persons  furnishing  labor  or  materials 
for  the  structure). 

Utah.  Sierra  Nevada  L.  Co.  v.  Whitmore,  24  Utah  130,  66  Pac.  Rep. 
779,  781.  See  Morrison  &  M.  Co.  v.  Willard,  17  Utah  306,  53  Pac.  Rep. 
832,  70  Am.  St.  Rep.  784;  Teahan  v.  Nelson,  6  Utah  363,  23  Pac.  Rep. 
764. 

«  See  §  316,  ante. 

*»  Chappius  v.  Blankman,  128  Cal.  362,  364,  60  Pac.  Rep.  925. 

••  Kerr'a  Cyc.  Code  Civ.  Proc,  S  1183. 


§  457  mechanics'  liens.  412 

laborer  agrees  with  the  original  contractor  for  more  than 
he  is  entitled  to,  upon  the  understanding  between  them  that 
it  shall  be  made  out  of  the  property,  there  would  be  such 
a  fraud  as  would  vitiate  the  claim.  But,  aside  from  such  a 
case,  we  think  that  the  word  '  value,'  as  used  in  section 
eleven  hundred  and  eighty-three,^^  is  to  be  construed  so  as 
to  mean  '  agreed  value.'  "  ^^ 

§  457.    Same.    Contract  of  subcontractor  and  contractor. 

In  speaking  of  the  contracts  of  subcontractors,  the  supreme 
court  has  said :  "  Are  the  employees  of  the  subcontractor 
subject  to  all  the  conditions  that  may  be  created  by  the 
account  between  the  contractor  and  the  subcontractor?  If 
the  account  is  consistent  with  the  terms  of  the  contract 
entered  into  between  the  contractor  and  the  subcontractor, 
and  payment  has  not  been  prematurely  made,  there  can  be 
no  doubt  that  the  employees  of  the  subcontractor  are  not  en- 
titled to  demand  from  the  contractor  or  employer  an  amount 
exceeding  the  sum  then  due  the  subcontractor  according 
to  his  agreement  with  the  contractor.  .  .  .  The  contrary 
doctrine  cannot  be  true,  unless  it  can  be  demonstrated 
that  a  party  who  has  fully  complied  with  the  terms  of  his 
agreement  can  be  held  responsible  for  an  amount  exceeding 
the  amount  he  agreed  to  pay.  The  mere  fact  that  a  portion 
of  the  work  was  done  and  the  materials  furnished  by  the 
employees  of  the  subcontractor  could  not  entitle  him  to 
receive,  either  directly  or  indirectly,  through  payments  to 
his  employees,  a  greater  sum  than  he  would  have  been  enti- 
tled to  had  he  personally  performed  all  the  labor  and  fur- 
nished the  materials  in  performance  of  the  subcontract."  °' 

"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1183. 

«  Jewell  V.  McKay,  82  Cal.  144,  150,  23  Pac.  Rep.  139. 

Utah.  Sierra  Nevada  L.  Co.  v.  Whitmore,  24  Utah  130,  66  Pac.  Rep. 
779,  781.  And  in  the  absence  of  a  special  contract  fixing  the  value  of 
the  services,  etc.,  the  limit  of  the  lien  would  be  the  reasonable  value 
of  the  services:    Id. 

VVashingrton.  "  While  it  is  true  that  the  owner  of  the  building 
would  not  be  bound  by  the  contract  made  between  his  contractor  and 
the  subcontractor,  if  it  was  shown  to  be  fraudulent  or  improvident, 
yet,  in  the  absence  of  sUch  showing,  it  must  be  presumed  that  the" 
contract  is  such  as  would  be  enforced  by  the  courts":  Spears  v.  Law- 
rence, 10  Wasli.  368,  3"],  38  Pac.  Rep.  1049.  4.5  Am.  St.  Rep.  789. 

^  Dore  V.  Sellers,  27  Cal.  588.  594.     It  was  also  said   (p.  595):   "The 


413  EXTENT    OF    LIEXS.  §  458 

§  458.     Same.     Claimants  under  subcontractors.     If  the 

contractor  has  paid  the  subcontractor  according  to  the  terms 
of  his  valid  contract  with  him  before  notice  duly  given  him 
by  the  subclaimants,  under  an  early  statute  the  claimants 
under  the  subcontractor  were  not  entitled  to  demand  any- 
thing from  the  contractor  or  owner,  nor  to  enforce  a  lien.^* 
It  seems  that  in  all  cases,  and  notwithstanding  the  fact  that 
the  statutory  original  contract  may  be  void,  subclaimants 
are  bound  by  the  terms  of  their  own  subcontracts.^^ 

statute,  for  the  protection  of  employees,  holds  the  payment  made 
before  it  fell  due  according-  to  the  terms  of  the  contract  void  as 
against  the  unsatisfied  claims  of  the  employees;  but  if  payment  has 
been  made  according  to  the  terms  of  the  contract,  and  before  the 
material-man  or  laborer  has  given  notice  of  his  claim  according  to 
law,  we  find  no  provision  in  the  statute  holding  the  employer  or  the 
original  contractor  liable  for  the  payment  of  such  claim,  and  cer- 
tainly there  is  no  rule  of  the  common  law  leading  to  such  a  result." 
There  seems  to  be  no  provision  in  the  present  statute,  however,  for 
giving  notice  by  employees  of  subcontractors  to  an  original  con- 
tractor. 

See  "Notice  to  Owner,"  §§  547  et  seq.,  post. 

=<  Dore  V.  Sellers,  27  Gal.  588,  595.  See  Macomber  v.  Bigelow  126 
Cal.  9,   15,   58  Pac.  Rep.   312. 

As  to  state  of  account  between  original  contractor  and  his  sub- 
contractor, who  asserts  a  lien  upon  the  fund  in  the  hands  of  the 
owner,  see  Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co  '?  Cal 
App.  303,   304,  83  Pac.  Rep.  292. 

Montana.  But  see  Merrigan  v.  English,  9  Mont.  113,  22  Pac.  Rep 
454,  5  L.  R.  A.  837;  Alvord  v.  Hendrie,  2  Mont.  115. 

OreROM.  See  Coleman  v.  Oregonian  R.  Co.,  25  Greg.  286,  35  Pac. 
Rep.  656,  with  reference  to  railroads   (under  Laws  1889,  p.  75). 

"■■'  See  -'Rights  of  Subcontractors,"  §5  70  et  seq.,  ante,  and  "Void 
Contract,"  §§  319  et  seq.,  ante. 


§  459  mechanics'  liens.  414 


CHAPTER    XXIII. 

LIMITATIONS    ON    LIENS     (CONTINUED).       ESTATES      A^D 
INTERESTS   SUBJECT  TO  LIENS. 

I.     By  Contract. 
§  459.     Plan  of  discussion. 
§  460.     Estates  or  interests  bound  by  contractual  relation  with  the 

holder  thereof.     Statutory  provision. 
§  461.     Same.     General  rule. 

§  462.     Same.     Fee  or  legal  title  subject  to  lien. 
S  463.     Same.     Vendee  being  in  possession. 
§  464.     Same.     Lessee  being  in  possession. 
§  465.     Same.     Title  being  held  in  trust. 
§  466.     Same.     Interest  of  vendee  in  possession  bound. 
§  467.     Same.     Interest  of  lessee  bound. 
§  468.     Same.     Homestead  bound. 

I.      BY    CONTRACT. 

§  459.  Plan  of  discussion.  In  this  chapter  we  shall  con- 
sider the  estates  and  interests  in  lands  which  are  subject 
to  mechanics'  liens  by  contract,  and  in  the  following  chap- 
ter those  by  estoppel,  where  no  question  of  priority  as 
between  such  estates  or  interests  arises.  In  the  succeeding 
chapter,  on  priorities,  the  relative  rights  of  the  owners  of 
such  estates  or  interests,  as  between  themselves,  as  well  as 
with  reference  to  liens  for  labor  performed  upon  or  mate- 
rials furnished  for  the  property,  will  be  treated  in  detail. 
The  discussion  here  will  naturall}^  include  a  brief  reference 
to  the  subject  of  agency  for  the  owner,  in  regard  to  which 
subject,  later  on,  an  extended  development  will  be  required ; 
and,  also,  and  under  this  general  head  in  the  following 
chapter,  the  topic  of  notice  of  non-responsibility  provided 
for  by  several  statutes  Avill  opportunely  find  a  place. 

Uncertainty  of  cases  as  to  principle  of  decision.  It  may 
be  suggested,  moreover,  that  the  cases  have  not  always 
clearly  pointed  out  upon  what  principle  the  decision  is 
rendered,  where  the  statute  provides  for  notice  of  non- 
responsibility;   and   it   is   difficult,   at   times,   to    determine 


415  ESTATES  AND  INTERESTS  SUBJECT.  §  460 

whether  the  basis  of  the  judgment  is  merely  the  agency  — 
actual,  ostensible,  or  statutory  —  of  the  person  causing  the 
improvement  to  be  niade,  in  behalf  of  the  owner,  or  under 
the  principle  of  statutory  estoppel  by  failure  to  post  such 
notice  of  non-responsibility. 

§  460.  Estates  or  interests  bound  by  contractual  relation 
with  the  holder  thereof.  Statutory  provision.  In  the  sec- 
tions immediately  following,  we  will  consider  estates  and 
interests  as  affected  by  contract  with  the  owner  directly,  or 
through  his  agent,  actual  or  ostensible.  Section  eleven 
hundred  and  eighty-five  ^  provides :  "  The  land  upon  w^hich 
any  building,  improvement,  well,  or  structure  is  constructed, 
...  is  also  subject  to  the  lien,  if,  at  the  commencement 
of  the  work,  or  of  the  furnishing  of  the  materials  for  the 
same,  the  land  belonged  to  the  person  who  caused  said 
building,  improvement,  well,  or  structure  to  be  constructed, 
altered,  or  repaired,  but  if  such  person  owned  less  than  a 
fee-simple  estate  in  such  laud,  then  only  his  interest  therein 
is  subject  to  such  lien."  ^ 

>   Kerr's  Cyc.  Code  Civ.  Proc,  §  1185. 

As  to  e»«tate.s  or  interests  bound  by  estoppel,  see  §§  469  et  seq.,  post. 

==  Lothian  v.   Wood,  55  Cal.   159,   160. 

Under  vonstructiou  gfiven  to  act  of  1855-56,  it  was  held  that  a 
mechanic's  lien  might  be  had  upon  whatever  interest  the  person  had, 
who  caused  the  superstructure  to  be  made.  If  the  party  owned  only 
the  superstructure,  then  the  lien  would  attach  only  to  that;  but  if  he 
also  owned  the  land,  the  lien  would  embrace  it  also,  and  any  interest 
in  the  land  which  might  be  held  under  execution  would  be  subject  to 
such  a   lien:   McGreary   v.   Osborne,   9   Cal.    119,    123. 

As  to  rights  of  lioensee,  see  Marchant  v.  Hayes,  120  Cal.  137,  138, 
49  Pac.  Rep.  840,  52  Id.  154;  and  Eaton  v.  Rocca,  75  Cal.  93,  95,  16  Pac. 
Rep.  529. 

As  to  autltority  of  g;iiardians,  trustees,  executors,  and  otliers  acting; 
In  a  representative  capacity  to  confer  rig-lit  to  nieclianic's  lien,  see 
note  61  Am.  Dec.  691. 

As  to  "  building'  contract.-*,"  agreement  of  sale,  effect  on  mechanic's 
lien,  see  note  61   Am.   Dec.   689. 

Ail  to  creation  of  riglit  to  mechanic's  lien  by  minors  and  others 
under  personal   disability,   see   note   61   Am.   Dec.   693. 

As  to  estates  or  interests  affected  by  mechanic's  lien,  see  notes  45 
Am.  Dec.  678;   13  L.  R.  A.  702. 

As  to  equitable  estate  being  chargeable  ^vith  mechanic's  lien,  see 
notes   45   Am.   Dec.   678;   61  Am.   Dec.   690. 

As  to  mechanic's  lien  on  grantee  of  contracting  owner,  see  note  61 
Am.  Dec.  699. 

As  to  mechanic's  lien  on  homestead  property,  see  note  9  L.  R.  A.  805. 


§  461  mechanics'  ltens.  416 

Statutory  agency.  The  provision  of  the  law  creating 
statutory  agency  will  be  considered  hereafter.^ 

§  461.  Same.  General  rule.  The  general  rule  is,  that 
whatever  interest  the  person  causing  the  work  to  be  done 
or  materials  to  be  furnished  had  in  the  land  is  subject  to 
the    liens,*    whether    the    improvement    is    caused    by    him 

As  to  nieolinnic's  lien  on  leasehold  estates,  see  notes  3  Am.  &  Eng. 
Ann.  Cas.  1096;  45  Am.  Dec.  678. 

As    to   mechanic's    lien    on    interest    of   lessees    and    tenants    for   life, 

see  notes  45  Am.   Dec.   678;   61    Am.   Dec.   697. 

A.S  to  mechanic's  lien  in  case  of  joint  tenants  and  tenants  in 
common,  see  note  61  Am.  Dec.  691. 

As  to  power  of  tenant  to  bind  fee,  see  note  61  Am.  Dec.  698. 

As  to  who  has  such  ownership  or  relation  to  property  that  he  can 
bind  it  by  mechanic's  lien,  see  note  61  Am.  Dec.  688. 

As  to  -^That  interest  or  estate  mechanic's  lien  attaches,  see  notes  13 
L.   R.   A.   702;   45   Am.   Dec.   678. 

^  See,  generally,  "Agency,"  §§  572  et  seq.,  post. 

Arizona.  Same  principle:  Bremen  v.  Foreman,  1  Ariz.  413,  25  Pac. 
Rep.   539    (ixnder  Comp.   Daws,  p.   248,   §  4). 

Colorado.  Tritch  v.  Norton,  10  Colo.  337,  15  Pac.  Rep.  680  (1881); 
Shapleigh  v.  Hull,   21  Colo.  419,  41  Pac.  Rep.  1108. 

JXew  Mexico.  See  Post  v.  Miles,  7  N.  M.  317,  326,  34  Pac.  Rep.  586 
(interest   in   the   improvement). 

rtah.  As  to  contracting  directly  with  owner  (act  of  1890,  §  1),  see 
Morrison  v.  Carey-Lombard  Co.,  9  Utah  70,  33  Pac.  Rep.  238. 

Lien  on  diteli.  So  the  lien  attaches  to  a  right  of  way  of  a  ditch, 
obtained  under  U.  S.  Rev.  Stats.,  §§  2339,  2340,  7  Fed.  Stats.  Ann.  1090, 
1096,  as  the  work  progresses:  Garland  v.  Bear  Lake  &  R.  W.  &  Irr.  Co., 
9  Utah  350,  34  Pac.  Rep.  368. 

Washington.      See  Cutter  v.  Striegel,  4  Wash.  346,   30  Pac.  Rep.  326. 

Ditch.  No  ownersliip  in  land.  Where  there  is  no  ownership  of  or 
interest  in  the  land  through  which  the  ditch  is  constructed,  there  is  no 
lien:    Nelson  v.  Clerf,   4  W'ash.  405,   30   Pac.  Rep.   716. 

Street-railway.  Likewise  of  a  street-railway:  Front  Street  C.  R.  Co. 
V.  Johnson,  2  W'ash.  112,  25  Pac.  Rep.  1084,  11  L.  R.  A.  693;  Pacific  R. 
M.  Co.  V.  James  Street  Const.  Co.,  68  Fed.  Rep.  966,  968,  16  C.  C.  A.  68,  29 
U.  S.  App.  698. 

Building  separate  from  land.  And  there  can  be  no  lien  upon  the 
building  separate  from  the  land  whereon  the  same  is  situated:  Kel- 
logg V.  Littell  &  S.  Mfg.  Co.,  1  Wash.  407,  408,  25  Pac.  Rep.  461;  Pacific 
R.  M.  Co.  V.  James  Street  Const.  Co.,  68  Fed.  Rep.  966,  968,  16  C.  C.  A. 
68,  29  U.  S.  App.   698. 

Community  property:  See  Sagmeister  v.  Foss,  4  W^ash.  320,  30  Pac. 
Rep.  80,  744;  Littell  &  S.  Mfg.  Co.  v.  Miller,  3  Wash.  480,  28  Pac.  Rep. 
1035. 

Interest  of  wife:  See  Anderson  v.  Harper,  30  Wash.  378,  70  Pac.  Rep. 
965. 

*  Parke  &  L.  Co.  v.  Inter  Nos  O.  &  D.  Co.,  147  Cal.  490,  495,  82  Pac. 
Rep.  51   (owners  of  well). 

Idalio.  Lien  limited  to  the  interest  of  the  employer  in  the  prop- 
erty: See  Idaho  G.  M.  Co.  v.  Winchell,  6  Idaho  729,  59  Pac.  Rep.  533,  96 
Am.  St.  Rep.  290. 


417  ESTATES   AND   INTERESTS   SUBJECT.  §  462 

directly  or  through  his  agent,  actual  or  ostensible.'^  Such 
interest  may  be  the  fee-simple  title,  and  the  fee  may  be 
subject  to  certain  estates  or  interests,  such  as  leases  and 
the  like,  and  the  estates  or  interests  last  mentioned  may, 
under  certain  circumstances,  be  likewise  subject  to  the  lien. 
These  matters  will  be  treated  in  detail  in  the  following 
sections. 

§  462.    Same.    Fee  or  legal  title  subject  to  lien.    The  fee 

or  legal  title,  by  virtue  of  the  provision  of  the  statute 
already  discussed,  and  heretofore  quoted  in  full,''  under  the 

Ij'tah.  Unless  the  person  causing  the  improvement  to  be  made  had 
some  interest  in  the  land,  no  lien  attaches  to  the  improvement;  for 
the  latter  is  to  be  taken  as  appurtenant  merely:  Eccles  L.  Co.  v. 
Martin  (Utah),  87  Pac.  Rep.  713,  715,  716  (under  Rev.  Stats.  1898,  "tit! 
xxxix,  eh.  i).  See  Sahford  v.  Kunkel  (Utah),  85  Pac.  Rep.  1012,' and 
Morrison  v.  Clark,  20  Utah  432,  59  Pac.  Rep.  235,  77  Am.  St.  Rep.  924. 

\Vu.sbington.  Baker  v.  Sinclaire,  22  Wash.  462,  61  Pac.  Rep.  170 
(under  Ballinger's  Ann.  Codes  and  Stats.,  §  5901).  The  clause  in  2 
Ballinger's  Ann.  Codes  and  Stats.,  §  5901,  referring  to  the  person 
owning  less  than  the  fee,  relates  to  the  person  who  caused  the  work 
to  be  done  or  materials  to  be  furnished:  Northwest  B.  Co.  v.  Tacoma 
S.  Co.,  36  Wash.  333,  78  Pac.  Rep.  996. 

=  See  "Agency,"  §§572  et  seq.,  post.  See  also  "Estoppel,"  §§469  et 
seq.,  post.  The  amendment  of  1903  to  Kerr's  Cye.  Code  Civ.  Proc, 
i  1183,  provides  that  every  person  having  charge  of  a  mining  claim, 
"either  as  lessee  or  under  a  working  bond  or  contract  thereon,  witli 
the  privilege  of  purchase,  or  otherwise,  shall  be  held  to  be  the  agent 
of  the  owner  for  the  purposes  of  this  chapter." 

"  §  460,  ante.     Hinckley  v.  Field's  B.  &  C.  Co.,  91  Cal.  136,  139,  27  Pac. 
Rep.  594.     See  W^orden  v.  Hammond,  37  Cal.  61,  65   (1862). 
See   §§  469   et  seq.,   post. 

Compare:    Hines  v.  Miller,  122  Cal.  517,  55  Pac.  Rep.  401. 
Arixona.     See    Bremen    v.    Foreman,    1    Ariz.    413,    25    Pac.    Rep.    539; 
Eaman  v.   Bashford,   37   Pac.   Rep.   24,  following  Moore  v.   Jackson    49 
Cal.  109. 

Colorado.  Interest  of  co-tenant  contracting  only:  Mellor  v.  Valen- 
tine,  3   Colo.   260. 

Contracting  with  others  than  owner  does  not  affect  the  lien:  Id. 
Contract  must  be  with  owner  or  agent:  Rico  R.  &  M.  Co.  v.  Mus- 
grave,   14  Colo.   79,   23  Pac.  Rep.   458    (co-tenants). 

Interest  of  grantee,  deed  in  escrow:  Chicago  L.  Co.  v.  Dillon,  13 
Colo.  App.   196,   56  Pac.  Rep.   989. 

Montana.  See  Missoula  M.  Co.  v.  O'Donnell,  24  Mont.  65,  60  Pac 
Rep.  594,  991. 

AVashington.  So  where  the  lessee  makes  repairs  by  authority  of 
the  lessor  (that  is,  as  the  latter's  agent):  Sheehan  v.  Winehill,  18 
Wash.  447,  51  Pac.  Rep.  1065.  So  where  the  contract  between  the 
lessor  and  lessee,  while  in  effect  a  lease,  is  a  building  contract,  the 
cost  to  be  paid  by  the  owner  by  way  of  rents  remitted:  Kremer  v 
W^alton,  16  Wash.  139,  47  Pac.  Rep.  238;  s.  c.  11  Wash.  120,  39  Pac.  Rep. 
374. 

Mech.  Liens  —  27 


§  463  mechanics'  liens.  418 

general  rule  announced  in  the  last  preceding  section,  may 
be  bound  and  charged  with  the  lien. 

In  a  mining  claim,  if  the  person  claiming  to  act  as  agent 
is  not  employed  as  such  by  the  owner,  who  has  no  knowledge 
of  the  work  being  done  upon  it,  and  he  exercised  ordinary 
care  in  the  premises,  no  lien  can  be  imposed  upon  the 
premises/ 

§  463.  Same.  Vendee  being  in  possession.  When  a 
person  is  in  possession  of  laud  under  a  contract  with  the 
owner,  the  terms  of  which  are  sufficient  at  the  general  law 
to  constitute  such  person  the  agent,  actual  or  ostensible, 
of  the  owner,  for  the  purpose  of  making  the  improvement, 
the  latter  must  be  deemed  to  have  caused  the  improvement 
to  be  made,  and  resort  need  not  be  had  to  the  failure  of 
the  owner  to  post  notice  of  non-responsibility,  hereafter 
to  be  discussed,  in  order  to  affect  such  owner's  interest  with 
liability  for  liens  in  the  making  of  the  improvement.  Upon 
this  principle,  liens  have  been  allowed  against  the  interest 
of  the  owner,  where  a  vendee  was  in  possession,  and  made 
improvements,  under  a  contract  of  sale  providing  for  such 
improvements,  expressly  or  impliedly,  under  circumstances 
giving  rise  to  the  relation  of  agency  between  the  vendee  and 
vendor  for  the  purpose  of  making  the  improvement.* 

•  Donohoe  v.  Trinity  Consol.  G.  &  S.  M.  Co.,  113  Cal.  119.  123,  45  Pac. 
Rep.  259  (the  employer  apparently  having-  no  interest  in  the  property). 
The  discussion  involved  only  questions  of  agency,  and  notice  of  non- 
responsibility  was  not  referred  to.  See  amendment  of  1903  to  §  11S3. 
Kerr's  Cyc.  Code  Civ.  Proc.  (Stats.  1903,  p.  84),  purporting  to  make 
lessee  or  vendee  agent  of  owner.     See  §  473,  post. 

Colorado.     See  Tritch  v.  Norton,  10  Colo.  337,  15  Pac.  Rep.  680  (1881). 

Oregon.     A  stranger  or  intermeddler  could  not  thus  encumber  the 

property  of  another:    Cross  v.  Tscharnig,  27  Oreg.  47,  39  Pac.  Rep.  540. 

*  In  Moore  V.  Jackson,  49  Cal.  109,  111,  a  vendee  in  possession  made 
repairs  by  permission  of  the  owner,  and  it  was  held  that  claimants 
had  a  lien,  even  if  the  vendee  did  not  carry  out  the  contract  of  pur- 
chase. The  ground  was  that  the  vendee  was  the  "agent"  of  the 
owner,  within  the  meaning  of  the  first  section  of  the  act  of  1868,  con- 
taining provisions  similar  to  those  of  §  1183,  Kerr's  Cyc.  Coda  Civ. 
Proc.,  and  not  upon  the  g;round  of  estoppel  or  knowledge  of  the 
owner,  as  provided  in  the  fourth  section  of  the  act,  similar  to  §  1192, 
Kerr's  Cyc.  Code  Civ.  Proc.  See  §§  469  et  seq.,  post,  where  the  relation 
considered  is  not  contractual,  but  by  way  of  estoppel. 

In  Guy  V.  Carriere,-  5  Cal.  511,  513  (1850),  tiie  vendee  was  in  pos- 
session under  an  oral  agreement  of  sale,  and  it  was  said  that  the 
owner  of  the  "  land  could  create  a  lien  upon  the  property,"  and  that 
the  vendee  had  no  rights  to  be  affected. 


419  ESTATES   AND   INTERESTS   SUBJECT.  §  464 

§  464.  Same.  Lessee  being  in  possession.  Under  tiie  prin- 
ciple tliat  the  interest  of  tlie  person  causing  tlie  work  to  be 
done  or  materials  to  be  furnished,  in  the  land,  is  bound  by 
the  lien,  whether  the  contract  therefor  was  made  by  such 
person  or  through  his  actual  or  ostensible  agent,  as  discussed 
in  the  last  preceding  sections,  where  a  lease  of  mining  claims 
provides  that  the  owner  should  be  paid  a  certain  portion  of 
the  net  profits  of  the  proceeds  from  working  the  mine,  and 
that  the  lessees  should  prosecute  the  work  of  mining,  before 
section  eleven  hundred  and  eighty-three  ^  was  amended  in 
1903,  said  section  made  the  lessees  the  owner's  agents,  and 
those  performing  labor  in  the  development  of  the  property, 
or  to  facilitate  the  extraction  of  ore,  discovered  or  undis- 
covered, or  in  the.  extraction  of  the  ore,  had  a  lien  for  such 
labor  upon  the  interests  of  the  lessees  and  the  owner.^° 

See  "  Notice  of  Non-responsibility,"  §  473,  post. 

Arizona.  Where  a  vendee  was  in  possession  under  an  option  to 
purchase,  wliich  provided  that  tlie  vendee  sliould  work  a  mine  at  his 
own  expense,  the  bullion  to  be  placed  to  the  credit  of  the  owner  as 
collateral  security  for  the  purchase  price,  and  upon  the  default  of 
certain  payments  the  purchaser  was  to  vacate  the  property,  the 
vendee's  laborers  have  no  lien  upon  the  interest  of  the  owner,  under 
Rev.  Stats.,  §§2276,  2278,  2280;  but  only  on  that  of  the  vendee,  there 
being  no  agency  for  the  owner:  Hadley  Co.  v.  Cummings,  7  Ariz.  258, 
64   Pac.   Rep.   443. 

On  lease  of  mine.  Likewise  with  reference  to  a  lease  of  a  mine,  the 
Interest  of  the  lessee  is  alone  liable:  Griffin  v.  Hurley,  7  Ariz.  399,  65 
Pac.   Rep.    147. 

See  •'  Agency,"  §§  572  et  seq.,  post. 

Colorado.  Where  the  vendee,  under  the  terms  of  the  contract,  is 
not  only  authorized  but  required  to  operate,  develop,  and  improve  a 
mine,  lien  claimants  have  a  lien  upon  the  interest  of  both  the  vendor 
and  vendee:  Hendrie  &  B.  Mfg.  Co.  v.  Holy  Cross  G.  M.  &  M.  Co.,  17 
Colo.  App.  341,  68  Pac.  Rep.  785;  Shapleigh  v.  Hull,  21  Colo.  419,  41 
Pac.  Rep.  1108;  Colorado  I.  W.  v.  Taylor,  12  Colo.  App.  451.  55  Pac.  Rep. 
942. 

Contract  to  perform  labor  upon  a  mine,  upon  the  completion  of 
Which  the  laborer  is  to  have  an  interest  in  the  property,  does  not 
constitute  him  the  owner  or  agent  of  the  owner,  within  the  mean- 
ing of  3  Mills's  Ann.  Stats.,  1st  ed.,  §  2867,  giving  a  lien  against  the 
interest  of  the  owner:  Maher  v.  Shull,  11  Colo.  App.  322,  327,  52  Pac. 
Rep.  1115.  See  Griffin  v.  Seymour,  15  Colo.  App.  487,  63  Pac.  Rep.  487, 
809   (vendor). 

But  this  doctrine  will  not  be  used  to  disturb  vested  rights  and 
valid  encumbrances:  Sprague  I.  Co.  v.  Mouat  L.  &  I.  Co.,  14  Colo.  App. 
107,   60   Pac.   Rep.    179,    184. 

"  Kerr's  Cjc.  Code  Civ.  Proc.,   §  1183. 

'"  Higgins  V.  Carlotta  G.  M.  Co.,'  148  Cal.  700,  702,  84  Pac.  Rep.  758, 
113  Am.  St.  Rep.  344. 

Arizona.  The  erection  of  a  bar  and  otlier  saloon  fixtures  in  a 
leased  building,  at   the  instance  of  the   leaseholder,   does  not  give  a 


§  465  mechanics'  liens.  420 

§  465.  Same.  Title  being  held  in  trust.  Where  claimants 
are  ignorant  of  the  existence  of  a  contract  with  an  executor, 
unauthorized  by  order  of  court,  and  the  title  to  a  mine  stood 
in  his  individual  name  upon  the  records  of  the  county  as  a 
resulting  trust  for  an  estate  which  he  was  administering 
in  another  county,  laborers  are  not  chargeable  with  notice 
of  the  probate  proceedings  as  fixing  the  legal  status  of  the 
mine,  but  are  protected  in  their  liens  for  work  done  in 
actual  ignorance  of  the  rights  of  the  estate,  as  encum- 
brancers for  value  without  notice  of  the  trust,  within  the 
meaning  of  the  statutory  provision.^^ 

lien  against  the  interest  of  the  owner:  Gates  v.  Fredericks,  5  Ariz. 
343,    52    Pac.    Rep.    1118    (under    Rev.    Stats.,    §  2258). 

Colorado.  Where  the  lease  provides  only  for  a  certain  improve- 
ment on  a  mine,  such  as  the  erection  of  a  mill,  whicli,  upon  the 
expiration  of  the  lease,  is  to  become  the  property  of  the  lessor,  the 
claimant  must  show  that  he  has  furnished  material  for  or  performed 
labor  upon  the  particular  improvement  set  forth  in  the  lease:  Antlers 
Park  R.  M.  Co.  v.  Cunningham,  29  Colo.  284,  68  Pac.  Rep.  226. 

Under  a  lease  in  ^vhlcli  the  lessor  has  no  interest,  the  interest  of 
the  lessor  is  not  subject  to  the  lien,  even  where  he  was  employed  as 
a  book-keeper  for  the  lessee,  and  acted  as  the  agent  of  the  lessee 
in  and  about  the  propertj',  and  did  not  notify  the  claimants  as  to  his 
true  relation  to  the  property:  Davidson  v.  Jennings,  27  Colo.  187, 
60  Pac.  Rep.  354,  83  Am.  St.  Rep.  49,  48  L.  R.  A.  340  (the  question  of 
estoppel  was  eliminated  by  failure  to  plead). 

Amendment  of  1S05.  E^ffcct  of.  The  fact  that  the  mechanic's-lien 
law  provides  that  the  owner  of  the  fee  shall  be  liable  unless  he  leases 
the  mine  in  small  blocks  of  ground  to  one  or  more  sets  of  lessees 
does  not  enlarge  or  extend  the  provision,  making  it  applicable  to 
owners  not  thus  leasing  their  lands:  Wilkins  v.  Abell,  26  Colo.  462, 
5-&  Pac.  Rep.  612   (under  Sess.  Laws  1895,  §  8,  p.  200). 

Nevada.  Rosina  v.  Trowbridge,  20  Nev.  105,  121,  17  Pac.  Rep.  751. 
See  Dickson  v.  Corbett,   11  Nev.  277   (lessor). 

Oregon.  The  interest  of  the  owner  is  not  subject  to  a  mechanic's 
lien  for  labor  performed  for  a  lessee  under  a  lease  recorded  before 
the  work  was  begun:  Lewis  v.  Beeraan,  46  Oreg.  311,  80  Pac.  Rep. 
417  (under  Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5668). 
See  Stinson  v.  Hardy,   27  Oreg.   584,   41  Pac.  Rep.   116. 

Lien  of  contractor  against  the  interest  of  an  estate  lessor;  work 
ordered  by  lessee  and  assigns  of  lessee:  See  Hobkirk  v.  Porthind 
B.  Club,  44  Oreg.  605,  77  Pac.  Rep.  776. 

AVashington.  But  otherwise  if  the  lessee  causes  the  improvement 
to  be  made,  and  is  not  the  agent  of  the  owner:  Stetson-Post  M.  Co. 
V.  Brown,   21  Wash.   619,  627,   59  Pac.  Rep.  507,  75  Am.  St.  Rep.   862. 

See   "Agency,"   §§572  et  seq.,   post. 

"  Kerr's  Cyc.  Civ.  Code,  §  856.  See  Chappius  v.  Blankman,  128  Cal. 
362,  365,  60  Pac.  Rep.  925. 

As  to  autliority  of  persons  in  trust  relation  or  representative  capa- 
city to  confer  right  to  mechanic's  lien,  gee  note  61  Am.  Dec.  691. 

Oregon.  Legal  estate  in  the  trustees  of  a  church  bound  by  their 
contract,  notwithstanding  the  deed  to  the  trustees  provided  that  the 


421  ESTATES   AND   INTERESTS   SUBJECT.  §§  466,  -167 

§  466.     Same.     Interest   of  vendee   in  possession   bound. 

Under  the  general  rule  laid  down  in  the  preceding  sections, 
the  equitable  interest  of  the  employer  in  possession  under 
a  contract  of  sale  is  subject  to  the  lien  to  secure  the  indebt- 
edness incurred  by  himself  for  materials  furnished  or  labor 
performed  in  the  construction  or  other  work  provided  for 
in  the  statute  with  reference  to  the  objects  therein  enumer- 
ated.^- 

§  467.  Same.  Interest  of  lessee  bound.  Under  the  gen- 
eral rule  stated  in  a  preceding  section/^  the  interest  of  a 
lessee  of  property  may  be  bound  by  a  lien  for  materials 

proceeds,  if  the  land  be  sold,  should  be  disposed  of  according-  to  the 
discipline  of  the  church:  Harrisburg  L.  Co.  v.  Washburn,  29  Oreg.  150, 
44  Pac.  Rep.  390;  Title  G.  &  T.  Co.  v.  Wrenn,  35  Oreg.  62,  56  Pac. 
Rep.   271,   76  Am.  St.  Rep.   454    (through  agent). 

Wyoining.  As  against  any  other  person,  however,  without  notice 
Of  the  trust,  or  the  equitable  interest  of  the  cestui  que  trust,  who 
purchases  the  same  from  the  trustee,  or  obtains  a  lien  thereon  by 
mortgage  or  by  operation  of  law,  such  as  a  mechanic's  lien,  dealing 
with  the  trustee  in  good  faith,  for  a  valuable  consideration,  who  is 
to  all  intents  and  purposes  the  full  owner,  such  third  person  takes  it 
discharged  of  the  trust.  In  this  case  a  decedent  died  after  erecting 
buildings  on  land  of  another,  and  his  administratrix  purchased  the 
land  and  took  a  deed  thereof  in  her  own  name,  using  the  estate's 
funds  for  that  purpose,  and  rebuilt  the  building  after  its  destruc- 
tion by  fire,  using  the  insurance-money  belonging  to  the  estate;  the 
interest  of  the  heir  was  held  bound  to  the  person  who,  without 
notice  of  the  rights  of  the  estate,  supplied  labor  and  materials  for 
the  building,  and  filed  a  mechanic's  lien  therefor:  Seibel  v.  Bath,  5 
Wyo.  409,  40  Pac.  Rep.  756. 

"  Crowell  V.  Gilmore,  13  Cal.  54,  56;  Hinckley  v.  Field's  B.  &  C.  Co., 
91  Cal.  136.   139,  27  Pac.  Rep.  594. 

See  authorities  in  preceding  note. 

Colorado.  See  Shapleigh  v.  Hull,  21  Colo.  419,  41  Pac.  Rep.  1108 
(lien  extends  to  both  interests  of  vendor  and  vendee,  where  latter 
contracts  upon  express  authority  or  requirement  of  vendor) ;  Colorado 
I.  W.  V.  Taylor,  12  Colo.  App.  451,  55  Pac.  Rep.  942;  Chicago  L.  Co.  v. 
Dillon,  13  Colo.  App.  196,  56  Pac.  Rep.  989.  See  also  Antlers  Park 
R.  M.  Co.  V.  Cunningham,  29  Colo.  284,  68  Pac.  Rep.  226. 

Idaho.  See  Steel  v.  Argentine  M.  Co.,  4  Idaho  505,  42  Pac.  Rep.  585, 
95  Am.   St.   Rep.   144. 

Utah.  Carey-Lombard  L.  Co.  v.  Partridge,  10  Utah  322,  37  Pac.  Rep. 
572     (1890). 

AVash  inert  on.  Uiff  v.  Forssell,  7  Wash.  225,  34  Pac.  Rep.  928;  Mentzer 
V.  Peters,  6  Wash.  540,  541,  33  Pac.  Rep.  1078.  See  St.  Paul  &  T.  L. 
Co.  V.  Bolton,  5  Wash.  763,  32  Pac.  Rep.  787  (obligee  under  bond  to 
convey).  Where  the  rights  of  the  vendee  are  forfeited  and  lost,  there 
is  nothing  upon  which  the  lien  of  the  claimant  can  attach:  Mentzer  v. 
Peters,  supra.  See  also  Baker  v.  Sinclaire,  22  Wash.  462,  61  Pac.  Rep. 
170   (under  Ballinger's  Ann.  Codes  and  Stats.,   §  5901). 

"  §  461,    ante. 


§  467  mechanics'  liexs.  422 

furnished  for  or  labor  performed  upon  a  structure  which 
the  lessee  caused  to  be  erected.^*     Thus  laborers  on  a  mine 

"  West  Coast  L.  Co.  v.  Newkirk,  80  Cal.  275,  278,  22  Pac.  Rep.  231; 
Lothian  v.  Wood,  55  Cal.  159.  164;  Johnson  v.  Dewey,  36  Cal.  623,  624 
(1862).  See  Barber  v.  Reynolds,  33  Cal.  497,  503;  W^est  Coast  L.  Co.  v. 
Apfield,  86  Cal.  335,  340,  24  Pac.  Rep.  993;  Crowell  v.  Gilmore,  13  Cal. 
54,  56;  Harlan  v.  Stufflebeem,  87  Cal.  508,  510,  25  Pac.  Rep.  680;  Central 
L.  &  M.  Co.  V.  Center,  107  Cal.  193,  194,  197,  40  Pac.  Rep.  334;  Jones  v. 
Shuey  (Cal.,  April  3,  1895),  40  Pac.  Rep.  17. 

See  "  Fixtures,"  §§  189  et  seq.,  ante,  and  §§  469  et  seq.,  post. 

Arizona.  Claimants  furnishing  materials  or  doing  labor  for  a 
lessee  have  a  lien  upon  the  interest  or  estate  of  the  lessee,  but  not 
against  the  estate  of  the  lessor,  unless  it  be  shown  that  the  lessee  was 
acting,  so  far  as  the  claimant  is  concerned,  as  the  agent,  either  in  fact 
or  in  law,  of  the  lessor;  mere  knowledge  on  the  part  of  the  lessor 
that  the  lessee  is  working  the  property,  or  even  permission  or  an 
agreement  on  the  part  of  the  lessor  that  the  lessee  may  work  the 
mine,  will  not  alone  constitute  the  lessee  such  agent  of  the  lessor: 
Bogan  V.  Roy  (Ariz.),  86  Pac.  Rep.  13,  15;  Gates  v.  Fredericks,  5  Ariz. 
343.  52  Pac.  Rep.  1118;  Hadley  Co.  v.  Cummings,  7  Ariz,  258,  64  Pac. 
Rep.   443. 

Colorado.  Cary  H.  Co.  v.  McCarty,  10  Colo.  App.  200,  210,  50  Pac. 
Rep.  744.     See  same  case  for  license  coupled  with  an  interest. 

Where  contract  in  made  by  and  for  benefit  of  lessee  of  a  mine,  and 
not  under  a  contract  made  with  the  owner  of  the  property,  or  one 
acting  by  his  autliority  as  agent  or  contractor,  claimants  have  no 
lien  against  the  interest  of  the  owner:  W'ilkins  v.  Abell,  26  Colo. 
462,  58  Pac.  Rep.  612  (under  §  8,  as  amended  by  Sess.  Laws  1895,  p. 
202);  W'illiams  v.  Eldora-Enterprise  M.  Co.  (Colo.),  83  Pac.  Rep.  780; 
Morrell  H.  Co.  v.  Princess  G.  M.  Co.,  16  Colo.  App.  54,  63  Pac.  Rep. 
807  (under  3  Mills's  Ann.  Stats.,  1st  ed.,  §2873);  Schwelzer  v.  Mans- 
field. 14  Colo.  App.  236,  59  Pac.  Rep.  843. 

Mining  lease  -with  option  to  purchase,  nudum  pactum,  converted 
into  an  enforceable  contract  of  sale  on  payment  of  part  of  purchase 
price:  See  Williams  v.  Eldora-Enterprise  G.  M.  Co.  (Colo.),  83  Pac. 
Rep.    780. 

A  contract  made  by  or  for  the  benefit  of  the  lessee  of  the  mine 
M'ith  claimant  not  the  basis  of  a  lien,  under  Sess.  Laws  1895,  p.  202 
(3  Mills's  Ann.  Stats.,  1st  ed.,  §  2873):  Morrell  H.  Co.  v.  Princess  G.  M. 
Co.,   16  Colo.  App.   54,   63  Pac.  Rep.   807. 

Under  a  lease  for  ordinary-  development-^-ork,  by  the  terms  of 
which  the  vendor  was  to  receive  a  stipulated  rental  in  the  nature  of 
a  royalty,  with  an  option  of  purchase,  there  being  no  requirement 
that  the  purchaser  should  make  any  improvements  or  do  any  work 
on  the  mine,  no  lien  can  be  enforced  against  the  interest  of  the 
owner  for  work  or  materials  performed  or  furnished  for  the  vendee: 
Williams  v.  Eldora-Enterprise  G.  M.  Co.  (Colo.),  83  Pac.  Rep.  780; 
Maher  v.  Shull,  11  Colo.  App.  322,  52  Pac.  Rep.  1115;  Schweizer  v. 
Mansfield,  14  Colo.  App.  236,  59  Pac.  Rep.  843;  Little  Valeria  M.  &  M. 
Co.  v.  Ingersoll,  14  Colo.  App.  240,  59  Pac.  Rep.  970;  Antlers  Park 
R.  M.   Co.  V.  Cunningham,   29  Colo.   284,   68  Pac.   Rep.   226. 

Montana.  Missoula  M.  Co.  v.  O'Donnell,  24  Mont.  65,  60  Pac.  Rep. 
594,  991;  Stenberg  v.  Liennemann.  20  Mont.  457.  52  Pac.  Rep.  84,  63  Am. 
St.  Rep.  636;  Montana  L.  &  Mfg.  Co.  v.  Obelisk  M.  &  C.  Co.,  15  Mont. 
20,  37  Pac.  Rep.  897;  Pelton  v.  Minah  Consol.  M.  Co.,  11  Mont.  281,  28 
Pac.  Rep.  310;  Block  v.  Murray,  12  Mont.  545.  31  Pac.  Rep.  550. 

Compare:    Beck   v.   O'Connor,    21   Mont.    109,    53   Pac.   Rep.    94. 


423  ESTATES   AND   INTERESTS   SUBJECT.  §  467 

have  a  lien  upon  the  interest  of  the  lessee,  with  whom  they 
have  contracted.'' 

Under  the  act  of  1862,  which  did  not  provide  for  any  notice 
by  the  owner  upon  receiving  knowledge  of  the  construction 
of  a  building  upon  his  land  (such  as  is  contained  in  section 
eleven  hundred  and  ninety-two^®),  it  was  held  that  where 
the  building  was  erected  by  a  lessee,  although  with  the 
knowledge  of  the  lessor,  the  interest  of  the  lessee  alone  was 
liable,  since  he  "  caused "  the  building  to  be  erected,  by 
entering   into   a   contract   with   the    claimant/'    But    where 

Kew  Mexico.     Post  V.  Miles,  7  N.  M.  317,  329,  34  Pac.  Rep.  586. 

Orej^on.  Mathiesen  v.  Arata,  32  Oreg.  342,  344,  50  Pac.  Rep.  1015,  67 
Am.  St.  Rep.  535;  Allen  v.  Rowe,  19  Oreg.  188,  23  Pac.  Rep.  901  (under 
mining-  act.  Laws  1891,  p.  76);  Stlnson  v.  Hardy,  27  Oreg.  584,  41  Pac. 
Rep.  116   (citing  Montana  cases,  supra). 

Utah.  Morrow  v.  Merritt,  16  Utah  412,  52  Pac.  Rep.  667;  Ellis  v. 
Brisacher,    8   Utah    108,    29   Pac.   Rep.    879. 

Washington.  Bell  v.  Groves,  20  W'ash.  602,  56  Pac.  Rep.  401;  Kre- 
mer  v.  Walton,  16  Wash.  139,  47  Pac.  Rep.  238,  s.  c.  11  Wash.  120,  39 
Pac.  Rep.  374;  Masow  v.  Fife,  10  Wash.  528,  39  Pac.  Rep.  140;  Har- 
rington V.  Miller,  4  Wash.  808,  31  Pac.  Rep.  325;  Stetson-Post  M.  Co. 
V.  Brown,  21  Wash.  619,  627,  59  Pac.  Rep.  507,  75  Am.  St.  Rep.  862; 
Owen  V.   Casey    (Wash.,  March   13,   1908),   94  Pac.   Rep.   473. 

1^  Berentz  v.  Belmont  O.  M.  Co.,  148  Cal.  577,  580,  84  Pac.  Rep.  4  7, 
113  Am.  St.  Rep.  308,  reversing  upon  this  point  (Cal.  App.)  84  Pac. 
Rep.    47. 

"  Kerr's  Cyc,  Code  Civ.  Proc.,  §  1192. 

"  Johnson  v.  Dewey,  36  Cal.  623,  624.  The  same  expression,  "caused 
^aid  building  ...  to  be  constructed,"  is  to  be  found  in  §  1185,  Iverr's 
Cyc.  Code  Civ.  Proc,  which  is  similar  to  §  4  of  the  act  of  1862:  W^orden 
V.  Hammond,  37  Cal.  61,  65  (1862),  in  which  it  was  likewise  held  that 
the  interest  of  the  vendor  under  a  contract  of  sale  was  not  subject  to 
a  lien.  See  Santa  Cruz  R.  P.  Co.  v.  Lyons,  117  Cal.  212,  213,  48  Pac. 
Rep.  1097,  59  Am.  St.  Rep.  174,  and  discussion  under  head  of  "Consti- 
tutional Aspects,"  §§  28  et  seq.,  ante;  Eaton  v.  Rocca,  75  Cal.  93.  16  Pac. 
Rep.  529;  Guy  v.  Carriere,  5  Cal.  511,  513  (1850);  Avery  v.  Clark,  87 
Cal.  619,  628,  29  Pac.  Rep.  919,  22  Am.  St.  Rep.  272;  §§459  et  seq.,  ante, 
and  notes.  But  see  Soule  v.  Dawes,  14  Cal.  247,  250;  and  Moore  v. 
Jackson,  49  Cal.  109,  111. 

Arizona.  Same  principle:  Gates  v.  Fredericks,  5  Ariz.  343,  52  Pac. 
Rep.   1118. 

Colorado.  See  Evans  v.  Young,  10  Colo.  316,  15  Pac.  Rep.  424,  3  Am. 
St.  Rep.  583;  United  M.  Co.  v.  Hatclier,  79  Fed.  Rep.  517,  25  C.  C.  A.  46. 
49  U.  S.  App.  139,  reversing  Hatcher  v.  United  States  L.  Co.,  75  Fed. 
Rep.    368    (Cir.    Ct.). 

Montana.  See  Stenberg  v.  Liennemann,  20  Mont.  457,  52  Pac.  Rep. 
84,  63  Am.  St.  Rep.  636;  Montana  L.  &  Mfg.  Co.  v.  Obelisk  M.  &  C.  Co., 
15  Mont.  20,  23,  37  Pac.  Rep.  897;  Pelton  v.  Minah  Consol.  M.  Co.,  11 
Mont.  281,  28  Pac.  Rep.  310;  Block  v.  Murray,  12  Mont.  545,  31  Pac.  Rep. 
550. 

Utah.  So  where  the  lease  provided  for  the  erection  of  improve- 
ments by  tenant:  Morrow  v.  Merritt,  16  Utah  412,  52  Pac.  Rep.  667, 
citing  Johnson  v.  Dewey,  36  Cal.  623. 


§  -167  mechanics'  liens.  424 

the  lessor's  interest  is  not  otherwise  affected,  it  seems  that 
the  lien,  generally  attaches,  subject  to  the  conditions  of  the 
lease. ^^ 

Wasbington.  See  Bell  v.  Groves,  20  Wash.  602,  56  Pac.  Rep.  401, 
where  it  was  held  that  the  improvements  erected  by  a  lessee  of  a 
vendee,  who  had  forfeited  his  right  under  an  unrecorded  contract, 
which  provided  that  in  case  of  forfeiture  the  improvements  should 
remain,  are  subject  to  the  lien  of  the  lessee's  material-man  who  has  no 
notice  of  such  contract,  and  who  believes  the  building  is  owned  by 
the  lessee,  the  vendor  having-  knowledge  of  the  construction,  and  not 
giving  notice  of  his  rights,  and  not  declaring  a  forfeiture  after  the 
materials  had  been  furnished.  But  where  a  bond  for  a  deed  has  been 
recorded,  and  there  is  no  estoppel,  the  rule  is  otherwise:  Bell  v. 
Groves,  supra;  St.  Paul  L.  &  T.  Co.  v.  Bolton,  5  Wash.  763,  32  Pac.  Rep. 
787.  And  so  the  interest  of  the  owner  is  not  liable,  even  though  he 
stated,  after  nearly  all  the  materials  had  been  furnished,  that  he 
would  see  that  the  person  fraudulently  representing  himself  to  be 
the  lessee  should  pay  the  claimant,  there  being  no  promise  on  his 
part  to  pay,  nor  any  consideration  for  such  promise,  if  it  was  made, 
and  the  claimant  was  not  induced  to  furnish  such  materials  by  such 
statement;  and  while,  possibly,  if  there  had  been  a  purchase  of  such 
leasehold  interest  by  the  owner,  such  interest  would  merge  in  the 
fee-simple  title  charged  with  the  lien  growing  out  of  the  furnished 
materials,  yet  where  all  the  rights  under  the  lease  had  been  for- 
feited, and  the  owners  took  possession  of  the  property,  and  at  the 
same  time  purchased  of  such  lessee  the  improvements  which  had  been 
placed  thereon,  there  would  be  no  such  merger  in  the  fee  as  would 
permit  the  operation  of  any  such  rule:  Masow  v.  Fife,  10  Wash.  528, 
39  Pac.  Rep.  140. 

See  note  12,  this  chapter,  supra. 

"  Gaskill  V.  Trainer,  3  Gal.  335,  340  (1850).  There  must  be  a  formal 
demand  made  on  the  day  when  the  rent  becomes  due,  to  create  a  for- 
feiture; and  a  waiver  of  this  demand  will  not  be  implied;  and  the 
surrender  of  the  leasehold  interest,  although  it  otherwise  operates  as 
a  merger  in  the  fee,  yet  it  cannot  be  suffered  to  defeat  the  rights  of  a 
third  party,  which  intervened  before  the  merger  took  place:  Id.  In 
this  case,  however,  the  statute  did  not  provide  for  giving  notice  to  the 
owner,  and  the  question  of  estoppel   did  not  arise. 

See  §§  469  et  seq.,  post;  "Priorities,"  §§  486  et  seq.,  post;  "Fixtures," 
§§  185  et  seq.,  ante. 

Colorado.  Where  the  lessee  erected  a  building,  and  a  lien  was 
filed  against  the  leasehold  interest,  and  the  lessee  sold  his  interest 
to  the  lessor:  held,  that  no  equitable  consideration  exists  to  hold  that 
an  absolute  merger  did  not  take  place,  and  that  the  entire  estate  was 
subject  to  the  lien:  Evans  v.  Young,  10  Colo.  316,  15  Pac.  Rep.  424,  3 
Am.  St.  Rep.   583. 

As  to  forfeiture  of  lease,  see  Id.  325. 

As  to  the  tes^t,  see  Gary  H.  Co.  v.  McCarty,  10  Colo.  App.  200,  50  Pac. 
Rep.   744. 

3Iontana.  Where  the  improvement  can  be  removed,  it  does  not 
seem  to  be  affected  by  forfeiture  of  lease:  Montana  L.  &  Mfg.  Co.  v. 
Obelisk  M.  &  C.  Co.,  15  Mont.  20,  24,  37  Pac.  Rep.  897;  Missoula  M.  Co.  v. 
O'Donnell,  24  Mont.  65^  60  Pac.  Rep.  594,  991. 

INothiiiju;  callable  of  removal  from  premises.  But  where  nothing 
is  constructed  upon  the  leased  premises  capable  of  being  removed 
therefrom,  the  rule  is  otherwise:    Montana  L.  &  Mfg.  Co.  v.  Obelisk  M. 


425  ESTATES    AND    INTERESTS   SUBJECT.  §  468 

Secret  agreements  in  lease.  The  character  of  an  improve- 
ment controls  when  the  rights  of  a  lien  claimant  are  in- 
volved, and  where  an  improvement  is  made  in  such  manner 
as  to  affix  it  to  the  realty,  and  a  laborer  has  no  information 
that  it  will  be  regarded  otherwise  than  as  suggested  hy  the 
manner  of  construction,  he  may  well  assume  that  he  is  mak- 
ing an  improvement  upon  real  property,  and  that  a  right 
of  lien  may  attach,  which  will  not  be  defeated  by  any 
secret  agreement  between  the  owner  and  a  lessee,  that  the 
improvement  may  thereafter  be  demolished  by  the  lessee 
at  the  expiration  of  the  lease,  or  at  any  other  time.^** 

§  468.  Same.  '  Homestead  bound.-'^  The  statute  provides : 
"  The  homestead  is  subject  to  execution  or  forced  sale  in 
satisfaction  of  judgments  obtained:  ...  on  debts  secured 
by  mechanics,  contractors,  subcontractors,  artisans,  archi- 
tects, builders,  laborers  of  every  class,  material-men's  or  ven- 
dors' liens  upon  the  premises."  -^     As  the  law  at  present 

&  C.  Co.,  15  Mont.  20,  24,  37  Pac.  Rep.  897;  Pelton  v.  Minah  Consol.  M. 
Co.,  11  Mont.  281,  28  Pac.  Rep.  310;  Block  v.  Murray,  12  Mont.  545,  31 
Pac.    Rep.    550. 

Utah.  Same  doctrine  as  Gaskill  v.  Trainer,  3  Cal.  335,  which  Is 
cited;  Ellis  v.  Breisacher,  S  Utah  108,  29  Pac.  Rep.  879. 

Washingtoii.  Bell  v.  Groves,  20  Wash.  602,  56  Pac.  Rep.  401;  Stet- 
son &  Post  M.  Co.  V.  Pacific  A.  Co.,  37  Wash.  335,  79  Pac.  Rep.  935; 
Northwest  B.  Co.  v.  Tacoma  S.  Co.,  36  Wash.  333,  78  Pac.  Rep.  996 
(the  lease  being  a  matter  of  record). 

As  to  merger  disoussed  above,  see  Masow  v.  Fife,  10  Wash.  528,  39 
Pac.  Rep.  140. 

See  §§  469  et  seq.,  post,  and  notes. 

'^  Stevenson  v.  Woodward,  3  Cal.  App.  754,  86  Pac.  Rep.  990. 

^  Mechanics'  liens  on  lioniestead  property:  See  note  9  L.  R.  A.  805' 
and  see  Kerr's  Stats,  and  Anidts.  100(5-07,  note  p.  480;  Kerr's  Cyc. 
Code  Civ.  Proc,  §  1185,  note. 

As  to  lioniesteads,  see  note  61  Am.  Dec.  688-699. 

-^  Kerr's  Cyc.  Civ.  Code,  §1241,  as  amended  in  1887  (Stats,  and 
Amdts.  1887,  p.  81). 

Before  tliis  amendment,  which  included  material-men,  it  was  held 
that  material-men  could  not  obtain  a  lien  upon  the  property  after  it 
had  been  impressed  with  a  homestead:  Richards  v.  Shear,  70  Cal.  187 
189,  11  Pac.  Rep.  607.  And  likewise  before  the  amendment,  when  the 
declaration  of  homestead  was  filed  after  the  materials  had  been  fur- 
nished, but  before  the  filing-  of  the  claim  of  lien:  Walsh  v.  McMenomy, 
74  Cal.  356,  360,  16  Pac.  Rep.  17.  See  Bonner  v.  Minnier,  13  Mont.  269i 
34  Pac.  Rep.  30,  40  Am.  St.  Rep.  441  (where,  under  similar  circum- 
stances, the  opposite  rule  was  established,  and  these  cases  were 
declared  distinguishable,  De  Witt,  J.,  dissenting).  See  also  Merrigan 
V.  English,  9  Mont.  113,  22  Pac.  Rep.  454,  5  L.  R.  A.  837. 


§468 


mechanics'  liens.  426 


exists,   a  mechanic's  lien  may  be   created  upon  the  home- 
stead property  without  the  joint  action  of  the  husband  and 

Rule  is  otherwise  since  the  amendment  of  1887,  as  shown:  Davies- 
Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641,  649,  22  Pac.  Rep.  S60. 
And  the  homestead  was  subjected  to  such  sale  for  materials  fur- 
nished before  the  passage  of  the  act  when  the  claim  was  filed  after 
its  passage:  Id. 

See  also   §§  35,   38,   ante. 

It  seems  that  under  the  first  subdivision  of  Kerr's  Cyo.  Civ.  Code, 
§  1241,  if  tlie  judgment  foreclosing  such  lien  has  been  obtained  before 
the  declaration  of  homestead  was  filed  for  record,  the  homestead  will 
be  subject  to  such  sale. 

Hawaii.  Homestead  exemption  does  not  apply  to  liens  of  me- 
chanics and  material-men  for  labor  performed  or  materials  furnished 
in  the  erection  of  the  building:  Rev.  Laws  Hawaii  1905,  §  1830.  See 
Id.,    §  296. 

Olclahoma.  There  must  be  a  contract  in  writing  with  both  hus- 
band and  wife,  if  they  are  both  living,  not  divorced,  in  order  to  secure 
a  mechanic's  lien  on  the  homestead  by  reason  of  having  furnished 
materials  for  improvements  thereon:  Rowley  v.  Varnum,  15  Okl.  612, 
84  Pac.  Rep.  487   (under  Wilson's  Rev.  and  Ann.  Stats.  1903,  §  2988). 

Honesty  and  fair  deaiing  dictates  that,  as  between  the  owner  of  a 
building  and  the  person  furnishing  materials  therefor,  such  materials 
should  be  paid  for  before  the  building  constructed  of  that  material 
shall  be  held  exempt  from  such  debts,  and  the  mere  Intention  of  the 
owner  to  make  the  property  a  homestead  should  not  be  used  to  the 
prejudice  of  a  party  who  relied  upon  the  fact  that  he  was  the  owner, 
and  gave  him  credit  for  such  material  upon  the  theory  that  there 
was  no  homestead:  Ball  v.  Houston,  11  Okl.  233,  66  Pac.  Rep.  358,  360. 

Utali.  The  legislature  may  provide  remedies  for  the  protection  of 
the  liomestead  rights  created  and  secured  by  the  constitution,  and 
inay  regulate  the  claim  of  the  right,  so  that  its  exact  limits  may  be 
known,  and  may  complete  the  same  by  supplemental  legislation;  but 
it  cannot  attempt  to  narrow,  defeat,  or  limit  the  homestead  right  thus 
defined  by  the  constitution  by  subjecting  the  homesead  to  any  kind  of 
sale  on  execution,  among  other  things.  But  if  the  homestead  claim- 
ant voluntarily  encumbers  it  as  provided  by  the  statute  (Rev.  Stats. 
1898,  §  1155),  a  material-man  furnishing  materials  for  an  improve- 
ment of  the  homestead  acquires  a  lien  under  tlie  statute,  which  does 
not  arise  out  of  or  under  any  contract,  made  by  the  owner,  which 
can  be. construed  into  a  contract  for  a  lien;  and  a  sale  thereof  tinder 
foreclosure  of  the  lien  under  Rev.  Stats.  1889,  §  1156,  is  in  violation 
of  art.  xxii,  §  1,  of  the  constitution:  Volker-Scowcroft  L.  Co.  v.  Vance 
(Utah),   88  Pac.  Rep.   896. 

Wasliin^on.  Under  Gen.  Stats.,  §  1404,  and  Code  Civ.  Proc, 
§§  481-483,  a  lien  could  be  claimed  for  the  erection  of  a  dwelling- 
liouse,  although  the  premises  are  at  the  tiine  intended  to  be  used  as 
a  homestead,  it  being  the  separate  property  of  the  husband:  Parsons 
V.  Pearson,  9  Wash.  48,  36  Pac.  Rep.  974. 

As  to  separate  property  of  the  wife,  or  community  property,  see 
same  case.  Under  Code  of  1881,  §  2410,  giving  the  husband  manage- 
ment of  cominunity  property,  he  was  empowered  to  contract  for  the 
erection  of  buildings  on  the  community  property  and  subject  it  to 
mechanics'  liens;  but -there  could  be  no  sale  of  the  husband's  or 
wife's  Interest  in  the  community  property  separately  during  the 
existence  of  the  community,  and  Code  of  1881,  §  1959,  authorizing  the 


427  ESTATES    AND    INTERESTS    SUBJECT,  §  468 

wife.-^  And  where  a  right  to  a  mechanic's  lien  exists  upon 
the  property,  the  filing  of  a  declaration  of  homestead  thereon 
subsequently  will  not  defeat  it.^^ 

interest  of  a  party  owning  less  than  a  fee-simple  to  be  sold,  did  not 
apply  to  such  a  case:  Littell  &  S.  Mfg.  Co.  v.  Miller,  3  Wash.  480,  28 
Pac.  Rep.  1035. 

Homestead:  See  Powell  v.  Nolan,  27  Wash.  318,  67  Pac.  Rep.  712, 
716,  68  Id.  389;  Peterson  v.  Dillon,  27  Wash.  78,  67  Pac.  Rep.  397. 

^  Palmer  v.  Lavig-ne,  104  Cal.  30,  34,  37  Pac.  Rep.  775,  distlnsiiishing 
Walsh  V.  McMenomy,   74  Cal.  356,   16  Pac.  Rep.  17. 

"  Davies-Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641,  649,  22  Pac. 
Rep.   860. 

See  "Retroactive  Laws,"  §36,  ante,  and  "Priorities,"  §§486  et  seq., 
post. 


§  469  mechanics'  liens.  428 


CHAPTER   XXIV. 

LIMITATIONS    ON    LIENS     (CONTINUED).     ESTATES    AND 
INTERESTS  SUBJECT   TO  LIENS. 

IL     By  Estoppel.     Notice  of  Non-responsibility. 

§  469.     Estates  or  interests  bound  by  estoppel.     Scope  of  discussion. 

§  470.     Same.     The  general  principles  of  estoppel  in  pais. 

§  471.     Same.     Independently  of  statute. 

§  472.  Same.  General  rule  as  to  when  notice  of  non-responsibility 
must  be  given. 

§  473.     Same.     Notice  of  non-responsibility.     Statutory  provision. 

§  474.  Same.  Purpose  of  provision  as  to  notice  of  non-responsi- 
bility. 

§  475.     Same.     Notice  or  knowledge  of  improvement. 

§  476.     Same.     Notice  to  corporation  as  owner. 

§  477.     Same.     Lessee  in  possession  and  making  improvements. 

§  478.     Same.    Vendee  being  in  possession. 

§  479.     Same.     When  notice  not  required. 

§  480.  Same.  When  notice  not  required  in  case  of  mines  and  min- 
ing claims. 

§  481.  Same.  Notice  not  required  in  case  of  grading  and  other 
work  in  incorporated  cities. 

§  482.     Same.     Notice  not   required  in   case   of  prior   liens. 

§  483.  Same.  Effect  of  knowledge  of  claimant  of  lack  of  authority 
of  person  making  improvement. 

§  484.     Same.     Notice,  when  to  be  posted. 

§  485.     Same.     Notice,  how  posted.     Conspicuous  place. 

II.      BY  ESTOPPEL.     NOTICE   OF  NON-RESPONSIBILITY. 

§  469.  Estates  or  interests  bound  by  estoppel.  Scope  of 
discussion.  In  the  preceding  chapter,  the  general  scope  of 
the  inquiry  here  was  pointed  out.^  It  is  now  necessary  to 
inquire  under  what  circumstances  an  estate  or  interest  in 
property  sought  to  be  charged  with  a  lien  is  subject  to  the 
same,  when  no  contractual  relation  exists  between  the  owner 
of  such  estate  or  interest  and  the  claimant,  either  by  contract 
with  such  owner  directly,  or  through  his  agent,"  actual  or 

1  See   §  459,   ante. 

'  The  subject  o£  agency  wiU  be  considered  in  anotlier  place, 
although  that  of  ostensible  agency  bears  closely  upon  the  questions 
here  considered.  See  chapter  on  "Agency,"  §§572  et  seq.,  post;  and 
"  Constitutional  Aspects,"  §§  28  et  seq.,  ante. 


429  ESTATES   AND   INTERESTS   SUBJECT.  §§  470,  471 

ostensible.  In  the  sections  immediately  preceding,  the  gen- 
eral nature  of  the  interests  and  estates  subject  to  the  lien  by 
contract,  without  the  intervention  of  any  other  than  an  agent, 
actual  or  ostensible,  is  considered.  The  following  sections 
have  reference  more  particularly  to  questions  of  estoppel.^ 
The  general  purpose  of  the  mechanic's-lien  law  is  to  give 
to  contractors,  laborers,  and  material-men  a  lien  on  the  land 
improved,  as  security  for  their  labor  and  material.  But  the 
law  also  gives  to  the  owner  certain  rights  and  privileges,  by 
which  he  may  protect  himself  against  the  operation  of  such  a 
lien.  The  law  does  not,  and  in  fairness  should  not,  make  the 
land  subject  to  the  lien  in  any  and  every  case  of  a  building 
or  other  structure  erected  upon  it.'* 

§  470.  Same.  The  general  principles  of  estoppel  in  pais 
will  not  be  dwelt  upon.  It  is  familiar  doctrine  that  the 
owner  of  land  who  stands  by  and  sees  another  sell  it,  without 
making  known  his  claim,  is  forever  estopped  from  setting 
up  his  title  against  an  innocent  purchaser,  who,  believing  the 
seller  to  be  the  owner,  has  parted  with  value;  and  so  one 
who  knowingly  and  silently  permits  another  to  spend  money 
upon  land,  under  the  mistaken  impression  that  he  has  title, 
will  not  be  permitted  to  set  up  his  right,  at  least  not  so  far 
as  to  deprive  him  of  the  value  of  such  improvements.^ 

§  471.  Same.  Independently  of  statute,  the  interest  of  a 
person  not  contracting,  either  directly  or  through  an  agent, 
would  not  be  subject  to  the  liens  for  labor  done  or  materials 
furnished,  even  if  such  person  has  knowledge  that  the  same 
is  being  performed  or  furnished." 

'  See   also    "Priorities,"    §§486    et   seq.,    post. 

*  Birch  V.  Mag-ic  T.  Co.,   139  Cal.  496,  500,   73  Pac.   Rep.   238. 

=  Godeffroy  v.  Caldwell,  2  Cal.  489,  492,  56  Am.  Dec.  360.  In  this 
case  there  was  an  actual  promise  on  the  part  of  the  mortgagee  that 
the  claimant,  whose  lien  was  not  allowed,  should  be  protected  as 
against  his  mortgage  for  moneys  advanced  for  the   improvements. 

As  to  fixtures  becoming;  property  of  owner  of  realty,  see  §§  185 
et  seq.,  ante. 

AVnNliin^^'ton.     Bell  V.  Groves,  20  Wash.  602,  56  Pac.  Rep.  401. 

"  Colorado.  Mellor  v.  Valentine,  3  Colo.  260  (part-owner).  See 
Tritch  V.  Norton,  10  Colo.  337,  15  Pac.  Rep.  680  (1881):  Folsom"  v. 
Cragen,  11  Colo.  205,  316,  17  Pac.  Rep.  515  (Gen.  Stats.  1883,  requiring 
contract  '  ->  be  made  with  owner). 


§  472  mechanics'  liens.  430 

Notwithstanding  the  fact  that  the  owner's  notice  of  non- 
responsibility  under  section  eleven  hundred  and  ninety-two 
is  limited  to  cases  arising  under  section  eleven  hundred  and 
eight}'- three,  and  is  not  applicable  to  those  under  section 
eleven  hundred  and  ninety-one,  relating  to  street-work,  still, 
the  fact  that,  for  instance,  the  true  owner,  the  wife,  had 
notice  that  certain  work  under  the  last-mentioned  section 
was  going  on  under  a  contract  made  by  her  husband,  and 
made  no  objection  to  it,  would  bear  upon  the  question  of 
agency  and  equitable  estoppel/ 

§  472.  Same.  General  rule  as  to  when  notice  of  non- 
responsibility  must  be  given.  The  general  rule  as  to  the  re- 
quirement of  notice  of  non-responsibility  may  be  stated 
to  be,  that  such  notice  need  be  given  in  the  manner  re- 

Co-tenant  cannot  impose  lien  upon  the  interest  of  his  co-tenants 
without  their  consent:  Rico  R.  &  M.  Co.  v.  Musgrave,  14  Colo.  79,  23 
Pac.  Rep.  458.  See  Empire  L.  &  C.  Co.  v.  Engley,  18  Colo.  388,  33 
Pac.  Rep.  153;    Johnston  v.  Bennett,  6  Colo.  App.  362,  40  Pac.  Rep.  847. 

Idalio.  Steel  v.  Argentine  M.  Co.,  4  Idaho  505,  42  Pac.  Rep.  585, 
95  Am.  St.  Rep.  144   (interest  of  vendor). 

Nevada.  See  Hampton  v.  Truckee  C.  Co.,  19  Fed.  Rep.  1,  4,  9  Sawy. 
381. 

Oklahoma.  Darlington-Miller  L.  Co.  v.  Lobsitz,  4  Okl.  355,  46  Pac. 
Rep.    481. 

Utah.  Morrow  v.  Merritt,  16  Utah  412,  52  Pac.  Rep.  667;  Ellis  v. 
Brisacher,  8  Utah  108,  29  Pac.  Rep.  879.  So,  lessor  of  mine:  Rev. 
Stats.,   §  1382. 

The  doctrine  of  Carey-Lombard  Lumber  Co.  v.  Partridge,  10  Utah 
322,  37  Pac.  Rep.  572  (1890),  probably  does  not  oppose  that  stated  in 
the  text,  although  the  language  of  the  decision  upon  this  point  is 
not  very  clear. 

Washington.  Miles  Co.  v.  Gordon,  8  Wash.  442,  36  Pac.  Rep.  265; 
Nelson  v.  Clerf,  4  Wash.  405,  30  Pac.  Rep.  716.  See  also  St.  Paul  & 
T.  L.  Co.  V.  Bolton,  5  Wash.  763,  32  Pac.  Rep.  787. 

Rule  of  the  text  holds,  even  where  the  person  fraudulently  repre- 
sents himself  as  the  lessee,  the  owner  not  being  a  party  to  the  mis- 
representation:    Masow  V.   Fife,    10  Wash.   528,   39   Pac.   Rep.    140. 

Wife's  property  bound  by  liusband's  act  when.  Notwithstanding 
the  authority  of  the  husband  to  contract  for  the  erection  of  a  build- 
ing upon  the  separate  property  of  the  wife  may  not  be  shown,  yet 
she  will  be  estopped  to  dispute  the  validity  of  a  mechanic's  Hen 
thereon,  when  it  appears  that  she  had  full  knowledge  of  tlie  erection 
of  the  building,  was  in  and  around  it  during  the  course  of  its  con- 
struction, and  assisted  in  the  selection  of  the  colors  of  the  paints  for 
it:  Spears  v.  Lawrence,  10  Wash.  368,  38  Pac.  Rep.  1049,  45  Am.  St. 
Rep.   789. 

As  to  mechanic's  lien  on  T»'ife's  real,  estate  for  house  erected  by 
husband,  see  note  61  Am.  Dec.  688  et  seq. 

'  Santa  Cruz  R.  P.  Co.  v.  Lyons.  133  Cal.  114,   118,   65  Pac.  Rep.  329. 


431  ESTATES   AND   INTERESTS   SUBJECT.  §  473 

quired  by  the  statute  only  in  the  ease  of  the  particular  char- 
acter of  labor,^  and  upon  the  objects  **  enumerated,  by  the 
persons  designated  in  the  statute. 

§  473.  Same.  Notice  of  non-responsibility.  Statutory 
provision.  Partially  to  remove  the  limitations  in  the  law  ^° 
pointed  out  in  the  preceding  sections,  the  statute  ^^  provides: 
"  [A]  Every  building  or  other  improvement  mentioned  in 
section  one  thousand  one  hundred  and  eighty-three  of  this 
code,  constructed  upon  any  lands  with  the  knowledge  [1]  of 
the  owner,  or  [2-]  the  person  having  or  claiming  any  interest 
therein,  and  [B]  the  work  or  labor  of  every  character  what- 
soever done  and  materials  furnished,  mentioned  in  said  sec- 
tion, upon,  in  or  to  any  mining  claim  or  claims,  or  real  prop- 

*  See  §§  130  et  seq.,  ante. 

"  See  §§  166   et  seq.,  ante. 

'"  Kerr's  Cye.  Code  Civ.  Proo.,  p.  481,  §  1192,  as  amended  Stats.  1907, 
Stats,  and  Amdts.  1907,  p.  577;  Kerr's  Stats,  and  Anidts.  1900-07,  p.  481. 

"  Notice  of  non-re.sponsibility:  See  BueU  v.  Brown,  131  Cal.  158, 
162.   63  Pac.  Rep.   167. 

Colorado.  Notice  of  non-responslbiUty :  See  GutshaU  v.  Kornaley 
(Colo.),   88  Pac.  Rep.   158. 

New  Mexico.  The  owner  knowing  of  repairs,  and  failing  to  file 
notice  of  non-responsibility  under  Comp.  Laws  1897,  §  2226:  See 
Pearce  v.  Albright,  12  N.  M.  202,  76  Pac.  Rep.  286.  See  Post  v.  Miles, 
7  N.  M.  317,  333,  34  Pac.  Rep.  586   (dissenting  opinion). 

VVasliington.  1  Hill's  Code,  §  1671  (providing  for  notice  of  non- 
responsibility),  was  repealed  by  the  act  of  1893,  ch.  xxiv:  Stetson- 
Post  M.  Co.  V.  Brown,  21  Wash.  619,  627,  59  Pac.  Rep.  507,  75  Am.  St. 
Rep.   862. 

Construction  of  statutory  provision.  "  It  is  contended  that  the 
owner  designated  in  such  section  [1  Hill's  Ann.  Code,  S1671J  is  the 
owner  of  the  legal  title.  Such  an  implication  would  doubtless  fairly 
attach  if  §  1671  were  construed  only  with  reference  to  §  1663.  which 
provides  who  shall  be  entitled  to  a  lien;  but,  construing  it  with 
reference  to  §  1665,  ...  it  becomes  apparent  that  the  owners  spoken 
of  in  §  1671  are  the  same  persons  referred  to  in  §  1665.  In  other  words, 
§  1671  does  not  give  a  lien  on  any  interest  that  was  not  given  by 
$1665,  but  simply  provides  a  way  by  which  persons  owning  interests 
described  in  that  section  can  avoid  the  attachment  of  the  lien  where 
they  have  not  themselves  contracted  for  the  construction,  alteration, 
or  repair  of  the  works  mentioned  in  §  1693":  St.  Paul  &  T.  L.  Co.  v. 
Bolton,  5  Wash.   763,   765,   32  Pac.  Rep.   787. 

Same.  Of  California  statute.  This  construction  is  different  from 
that  given  to  the  California  provision  as  it  stood  before  the  amend- 
ment of  1907;  but  as  it  does  not  appear  from  the  decision  in  the 
Wasliington  case,  tliat  the  owners,  who  gave  a  uond  to  convey  the 
title,  had  any  knowledge  of  the  construction  of  the  building  by  the 
obligee  of  the  bond,  it  is  possible  that  the  case  is  not  really  contrary 
to  the  California  rule,  notwithstanding  the  difference  in  tlie  construc- 
tion of  the  statute  given  by  the  court. 


§  473  mechanics'  liens.  432 

erty  worked  as  a  mine,  with  the  knowledge  [1]  of  the  owner, 
or  [2j  the  person  having  or  claiming  any  interest  therein, 
shall  be  held  to  have  been  constructed,  performed  or  fur- 
nished at  the  instance  of  [a]  such  owner  or  [b]  person  hav- 
ing or  claiming  any  interest  therein,  [C]  and  the  interest 
owned  or  claimed  shall  be  subject  to  any  lien  filed  in  accord- 
ance with  the  provisions  of  this  chapter,  unless  such  owner  or 
person  having  or  claiming  any  interest  therein  shall,  [1] 
within  ten  days  after  he  shall  obtain  knowledge  of  the  con- 
struction, alteration,  repair,  or  work  or  labor,  [2]  give  notice 
that  he  will  not  be  responsible  for  the  same,  by  [3]  posting  a 
notice  in  writing  to  that  effect,  [4]  in  some  conspicuous  place 
[a]  upon  the  said  land  or  mining  claim  or  claims,  or  [b] 
upon  the  building  or  other  improvements  situated  thereon, 
or  [5]  file  and  record  a  copy  of  such  notice  in  the  office  of 
the  county  recorder  of  the  county  wherein  such  mining  claim 
or  real  property  worked  as  a  mine  is  situate.  [D]  And  all 
mining  machinery  placed  upon  or  in  any  mining  claim  or 
claims,  or  real  property  used  as  a  mine,  under  a  lease  or 
other  agreement  by  the  terms  of  which  [1]  such  machinery 
shall  not  lose  its  identity  as  the  personal  property  of  the 
lessor,  and  [2]  which  is  used  in  the  operation  and  working 
of  such  mining  claim  or  claims,  or  real  property  used  as  a 
mine,  shall  be  deemed  to  be  a  fixture  attached  to  such  mining 
claim  or  claims,  or  real  property  used  as  a  mine,  for  the 
purposes  only  of  the  lien  hereinbefore  mentioned,  and  shall 
be  subject  to  such  lien,  unless  such  lessor  shall  [a]  within 
ten  days  after  such  machinery  shall  have  been  delivered  at 
such  mining  claim  or  claims,  or  real  property  used  as  a 
mine,  file  and  record  such  lease  or  other  agreement  in  the 
office  of  the  county  recorder  of  the  county  in  which  such 
machinery  shall  be  used  as  aforesaid;  or  [b]  within  said 
ten  days  shall  post  a  notice  in  some  conspicuous  place  in 
some  building  on  said  mining  claim  wherein  said  machinery 
is  to  be  used,  stating  therein  [i]  that  said  machinery  is  the 
property  of  said  lessor  and  [ii]  has  been  leased  or  contracted 
to  be  sold  to  the  person  operating  said  mine,  and  [iii]  that 
said  machinery  will  not  be  liable  for  any  lien  provided  for 
in  this  chapter.     [E]  Any  person  performing  labor  on  such 


n 


433  ESTATES   AND   INTERESTS   SUBJECT.  §  474 

mining  claim  or  real  property  worked  as  a  mine  [1]  may 
post  and  keep  posted  in  a  conspicuous  place  thereon  a  notice 
containing  the  substance  of  either  or  both  of  the  notices 
above  provided  and  [2]  it  shall  be  a  misdemeanor  for  any 
person  to  take  down,  remove  or  deface  such  notice." 

§  474.  Same.  Purpose  of  provision  as  to  notice  of  non- 
responsibility.  The  purpose  of  the  statute,  before  the  amend- 
ment of  1903,^-  was  to  allow  a  lien  for  mining-work  done 
upon  a  mine, ,  against  the  estate  or  interest  therein  of  the 
person  who  was  to  benefited  thereby,  whether  done  directly 
for  him  and  at  his  request,  or  indirectly  for  his  benefit,  at 
the  request  of  some  other  person  operating  in  pursuance  of 
some  express  or  implied  contract  with  him.^^ 

The  original  California  provision  as  to  notice  of  non- 
responsibility  was  clumsily  worded,  and  the  decisions  con- 
struing the  provision  as  it  stood  before  the  amendment  of 
1907,  quoted  in  a  preceding  section,  did  not  leave  it  free 
from  doubts.  It  provided  a  mode  of  binding  the  owner's 
interest  where  the  claimant  is  not  in  privitj^  with  the 
"  owner  "  or  person  having  an  interest,  —  that  is,  one  having 
a  legal  estate  less  than  the  fee,  or  such  an  equity  as  might  be 
enforced  by  securing  a  transfer  of  a  legal  estate.  The  rights 
of  mortgagees  and  encumbrancers,  with  reference  to  those  to 
Avhom  the  provisions  of  the  code  concede  a  lien,  are  fixed  by 
section  eleven  hundred  and  eighty-six.^* 

"  stats,   and  Amdts.    1903,    ch.    Ixxvi,    p.    84. 

"  Hig-gins  V.  Carlotta  G.  M.  Co.,  14S  Cal.  700,  702,  84  Pac.  Rep.  758, 
113  Am.  St.  Rep.  344. 

See  chapter  on   "  Agency,"   §§  572  et  seq.,  post. 

"  Williams  v.  Santa  Clara  M.  Assoc,  66  Cal.  193,  200,  5  Pac.  Rep.  85, 
4  West  Coast  Rep.   616. 

See  "  Priorities,"  §§  486  et  seq.,  post. 

Ort'Kon.  This  section,  "assuming  that  a  lien  cannot  be  created 
without  the  consent  of  the  owner,  express  or  implied,  simply  provides 
a  rule  of  evidence  by  which  such  consent  could  be  determined,"  and 
such  provision  is  not  unconstitutional;  but  if  it  were  provided  by  the 
statute  that  the  fact  that  a  person  performing-  labor  or  furnishing 
material  was  not  enjoined  by  the  owner,  or  notified  in  writing  not  to 
do  so,  should  be  conclusive  evidence  that  such  labor  was  performed 
or  material  furnished,  with  or  by  his  consent,  without  reference  to 
his  knowledge  thereof,  it  would  be  unconstitutional:  Title  G.  &  T.  Co. 
V.  Wrenn,  35  Oreg.  62,  56  Pac.  Rep.  271,  76  Am.  St.  Rep.  454. 

See  "Agency."  S§  572  et  seq.,  post.  See  Allen  v.  Rowe,  19  Oreg.  188. 
23  Pac.  Rep.  901;  Cross  v.  Tscharnig,  27  Oreg.  49,  39  Pac.  Rep.  540. 
Mech.  Liens  —  28 


§  475  mechanics'  l\ens.  434 

§  475.  Same.  Notice  or  knowledge  of  improvement.  Un- 
der the  provision  requiring  the  owner  to  post  notice  of  non- 
responsibility,  the  fee  or  interest  of  the  "  owner  "  is  subject 
to  the  lien,  if  the  owner,  having  notice  or  knowledge  of  the 
construction,  alteration,  or  repair,  fails  to  give  the  required 
notice  that  he  will  not  be  responsible  when  the  work  or 
material  is  contracted  for  by  some  other  person. ^°  But  the 
interest  of  the  owner  is  not  subject  when  he  has  no  such 
notice  or  knowledge.'®     It  is  subject,  however,  if  he   has 

"  Marchant  v.  Hayes,  120  Cal.  137,  139,  52  Pac.  Rep.  154;  Evans  v. 
Judson,  120  Cal.  282,  283,  52  Pac.  Rep.  585;  Hamilton  v.  Delhi  M.  Co., 
118  Cal.  148,  152,  50  Pac.  Rep.  378;  West  Coast  L.  Co.  v.  Newkirk,  80 
Cal.  275,  279,  22  Pac.  Rep.  231;  West  Coast  L.  Co.  v.  Apfleld,  86  Cal. 
335,  340,  24  Pac.  Rep.  993  (lessor);  Harlan  v.  Stufflebeem,  87  Cal.  508, 
513,  25  Pac.  Rep.  686  (lessor);  Avery  v.  Clark,  87  Cal.  619,  627,  25 
Pac.  Rep.  272,  22  Am.  St.  Rep.  919  (vendor's  interest).  See  Santa 
Monica  L.  &  M.  Co.  v.  Hege,  119  Cal.  376,  379,  51  Pac.  Rep.  515;  s.  c. 
48  Pac.  Rep.  69  (building  erected  by  lessee  by  permission  of  ovv^ner); 
Jewell  v.  McKay,  82  Cal.  144,  145,  23  Pac.  Rep.  139;  Phelps  v.  Max- 
well's Creek  G.  M.  Co.,   49   Cal.  336,   339    (1868;    lessor). 

Compare:  Stowell  v.  Waddingham,  100  Cal.  7,  34  Pac.  Rep.  436. 

As  to  actual  notice,  see  Kerr's  Cyc.  Civ.  Code,  §  18,  and  note  pars. 
1-8. 

As  to  constructive  notice,  see  Kerr's  Cyc.  Civ.  Code,  §  19,  and  note 
pars   1-104. 

Colorado.     See  Seely  v.  Neill   (Colo.),  86  Pac.  Rep.  334. 

Nevada.  Rosina  v.  Trowbridge,  20  Nev.  105,  108,  17  Pac.  Rep.  751; 
Gould  V.  Wise,   IS  Nev.   253,   258,  3  Pac.  Rep.  30. 

Interest  of  ee.stui  que  trust.  The  interest  of  a  certain  cestui  que 
trust  is  also  bound:    See  Rosina  v.  Trowbridge,   supra. 

New  Mexico.  Ford  v.  Springer  L.  Assoc,  8  N.  M.  37,  58,  41  Pac. 
Rep.  541;  Post  v.  Miles,  7  N.  M.  317,  325,  34  Pac.  Rep.  586;  Mountain  E. 
Co.  V.  Miles,  9  N.  M.  512,  56  Pac.  Rep.  284,  285. 

Oregon.     Hunter  v.  Cordon,   32  Greg.  443,   52  Pac.  Rep.   182. 

The  "owner"  referred  to  in  this  section  is  not  necessarily  "the 
person  who  caused  the  building  to  be  constructed,"  but  may  be  the 
owner  of  the  legal  title:  Title  G.  &  T.  Co.  v.  Wrenn,  35  Greg.  62,  56 
Pac.  Rep.   271,   76  Am.  St.  Rep.  454. 

Wasliington.  But,  under  Gen.  Stats.,  §  1671,  it  was  held  that  wliere 
the  owner  did  not  have  "anything  to  do  with  the  construction  of  said 
building  in  any  way,"  further  than  guaranteeing  the  payment  of  a 
certain  bill  for  lumber,  which  was  purchased  by  his  vendee  of  the 
land,  and  used  in  the  construction  of  the  building,  although  the 
owner  did  not  post  any  notice,  yet  his  interest  was  not  bound,  on  any 
principle  of  estoppel:    Iliff  v.  Forssell,  7  Wash.  225,  64  Pac.  Rep.  928. 

Comitare:  Spokane  Mfg.  L.  Co.  v.  McChesney,  1  Wash.  609,  614,  21 
Pac.  Rep.   198. 

"  Lothian  v.  Wood,   55  Cal.  159,    163    (lessor). 

Colorado.  See  Seely  v.  Neill  (Colo.),  86  Pac.  Rep.  334  (under  Laws 
1899,  ch.  cxviii,  §  5,  p.  267). 

Oregon.     Allen  v.   Rowe,   19   Greg.   188,   23   Pac.   Rep.   901. 

AVashington.  See  Mentzer  v.  Peters,  6  Wash.  540,  33  Pac.  Rep.  1078; 
and  under  a  similar  provision  (Code  1S81.  §  1965),  it  had  to  appear 
affirmatively  that  the  owner  had  such  notice:  Cutter  v.  Striegel,  4 
Wash.  346,  30  Pac.  Rep.  326. 


II 


435  ESTATES    AND    INTERESTS    SUBJECT.  §§476,  ITT 

sufficient  knowledge  to  put  him  upon  inquiry.  Thus  where 
the  owner  gave  leave  to  a  tenant  to  construct,  but  the  owner 
had  no  actual  knowledge  of  the  construction.^^ 

§  476.  Same.  Notice  to  corporation  as  owner.  But  if  the 
property  was  owned  by  a  corporation,  and  its  president  per- 
sonally visited  the  same  while  the  repairs  were  going  for- 
ward, and  was  then  informed  thereof,  it  is  prima  facie  suffi- 
cient to  charge  the  corporation  with  knowledge  of  the  fact 
that  the  work  w^as  being  done.^^  On  the  other  hand,  if  the 
work  was  done  solely  upon  the  individual  responsibility  of 
one  of  the  directors  of  a  mining  corporation,  and  wholly 
apart  from  any  official  relation  of  such  director  to  the  com- 
pany, and  not  for  it  in  any  way,  the  doctrine  of  constructive 
or  implied  notice  on  the  part  of  the  corporation  of  w^hat  was 
being  done  cannot  obtain,  and  no  lien  attaches  therefor  on 
such  property.^^ 

§  477.  Same.  Lessee  in  possession  and  making-  improve- 
ments. Where  there  is  a  lease  for  a  brief  term,  under  the 
terms  of  which  the  lessee  may  make  and  remove  improve- 
ments made  by  him  on  the  premises,  unless  the  same  should 
be  so  incorporated  with  existing  structures  that  removal 
would  leave  the  latter  in  worse  condition  than  at  the  date 
of  the  lease,  in  which  case  the  added  improvements  are  to 
become  the  propert}'  of  the  lessor,  the  latter  participates  con- 
tingently in  the  benefit  of  such  improvements  which  may  be 

"  Santa  Monica  L.  &  M.  Co.  v.  Hege,  119  Cal.  376,  51  Pac.  Rep.  515. 
See  Hines  v.  Miller,   122  Cal.   517,   55   Pac.   Rep.   401,   402. 

See  §  483,  post. 

Nevada.  Gould  v.  Wise,  18  Nev.  253,  3  Pac.  Rep.  30  (it  appeared 
that  the  agent  of  the  corporation,  also,  had  notice). 

"  Phelps  V.  Maxwell's  Creek  G.  M.  Co.,  49  Cal.  336,  338,  under  act  of 
March  30,  1868,  §  4  of  which  required  notice  of  non-responsibility  to 
be  posted. 

See  "  Evidence,"  §§  779  et  seq.,  post. 

Nevada.     Gould  v.  Wise.   18  Nev.   253,   3  Pac.  Rep.   30. 

'»  Ayers  v.  Green  Gold  M.  Co.,  116  Cal.  333,  336,  48  Pac.  Rep.  221,  the 
court  saying,  "  It  may  be  true  that  the  corporation  would  be  charge- 
able with  the  knowledge  of  Mrs.  Crittenden  (the  contractor),  had  she 
been  either  actually  or  ostensibly  representing  or  actingfor  it  in  the 
transaction;  but  both  the  evidence  and  the  findings  show  that  she 
was  not.  .  .  .  Mrs.  Crittenden  expressly  stated  to  plaintiff  that  she 
was  acting  solely  on  her  individual  responsibility,  and  not  for  the 
corporation  in  any  way." 


§  477  mechanics'  liens.  436 

of  a  permanent  character,  and  has  notice  of  circumstances 
sufficient  to  put  a  prudent  man  upon  inquiry  as  to  the  actual 
improvement,  and  is  charged  with  knowledge  thereof,  and 
such  knowledge  is  not  too  vague  to  charge  the  lessor  with 
the  duty  of  giving  notice  of  non-responsibility.-°     And  the 

'"  Evans  v.  Judson,   120  Cal.   282,   284,  52  Pac.  Rep.   585. 

Necessity  of  iiosting  notice.  The  question  whether  it  was  neces- 
sary for  the  owner  to  post  notices  witliin  three  days  after  knowledge 
of  the  intention  of  the  tenant  to  improve  the  premises  at  some  indefi- 
nite future  time  was  referred  to,  but  not  decided:  See  Hines  v.  MiUer, 
122  Cal.  517,  55  Pac.  Rep.  401,  402.  In  the  case  last  cited  the  owner  con- 
tracted to  sell,  and  authorized  the  purchasers  "to  enter  into  immedi- 
ate possession,"  "and  proceed  to  work  and  develop  tlie  same,"  etc.,  the 
owners  to  receive  twenty-five  per  cent, 
^ee  notes  to  sections  iinmediately  preceding. 

As  to  constructive  notice,  see  Kerr's  Cyc.  Civ.  Code,  §  19,  note  pars. 
1-104. 

Agreement  -with  a  lessee  or  conditional  purcliaser  that  improve- 
ments must  be  made  at  his  own  cost,  and  that  the  lessor  or  seller  will 
not  be  liable  for  labor  or  materials,  will  not  satisfy  the  statute,  nor 
protect  the  interest  of  the  owner  from  liens;  and  if  he  had  notice  of 
tlie  improvement,  either  from  the  agreement  itself  or  otherwise,  his 
interest  will  be  bound,  in  the  absence  of  posting  of  notice  of  non- 
responsibility  required  by  the  statute:  Ah  Louis  v.  Harwood,  140  Cal. 
500,  506,  74  Pac.  Rep.  41  (the  effect  of  verbal  notice  of  the  terms  of 
the  option  by  the  claimant  was  eliminated  from  the  case). 

In  Higgins  v.  Carlotta  Gold  Mining  Co.,  148  Cal.  700,  702,  705,  84  Pac. 
Rep.  758,  113  Am.  St.  Rep.  344,  the  court  said,  after  referring  to  a  pre- 
vious portion  of  §  1183  of  the  Code  of  Civil  Procedure:  "Then  follows 
a  provision  wliich,  as  it  stood  when  these  liens  were  filed,  was  as 
follows:  '  And  every  contractor,  subcontractor,  architect,  builder,  or 
other  person  having  charge  of  any  mining,  or  of  the  construction, 
alteration,  addition  to,  or  repair,  either  in  whole  or  in  part,  of  any 
building  or  other  improvement,  as  aforesaid,  shall  be  held  to  be  the 
agent  of  the  owner,  for  the  purposes  of  this  chapter.'  By  an  amend- 
ment made  afterwards,  there  was  inserted,  immediately  after  the 
words  'any  mining,'  the  phrase,  'either  in  the  development  thereof 
or  in  working  therein  by  the  subtractive  process':  Stats.  1903,  ch. 
Ixxvi,  p.  84.  We  do  not  perceive  liow  this  changes  the  effect  of  the 
clause  as  it  stood  before,  but  the  question  is  not  involved,  for  this 
case  must  be  decided  upon  the  law  existing  at  the  time  the  work  was 
done  and  the  liens  filed.  This  clause,  as  a  whole,  refers  to  both 
classes  of  liens.  The  phrase  '  any  mining '  refers  solely  to  the 
working  of  a  mine,  and  its  effect  is  that  the  person  in  charge  of  any 
'  mining '  is  made  the  agent  of  the  owner,  although  the  work  he  is 
prosecuting  does  not  in  the  least  improve  the  property  or  add  any- 
thing thereto,  but  destroys  or  lessens  its  inherent  value,  by  removing 
the  ore  therefrom:  Williams  v.  Hawley,  144  Cal.  97,  103,  77  Pac.  Rep. 
762.  In  order  to  make  him  the  agent  of  the  owner  in  such  a  case, 
however,  such  person  must  be  in  cliarge  with  the  consent  of  the 
owner,  and  must  be  prosecuting  or  controlling  the  mining  operations, 
eitlier  wholly  or  in  part,  for  the  benefit  of  the  owner:  Jurgenson  v. 
Diller,  114  Cal.  491,  46- Pac.  Rep.  610,  55  Am.  St.  Rep.  83;  Reese  v. 
Bald  Mountain  Consol.  G.  M.  Co.,  133  Cal-.  285,  65  Pac.  Rep.  578.  Such 
benefit  may  be  direct,  as  where  the  ore  extracted,  or  some  share  of  it, 


437  ESTATES    AND    INTERESTS   SUBJECT.  §  477 

fact  that  the  improvements  are  to  be  removed  by  the  tenant 
at  the  termination  of  the  lease,  and  are  not  to  remain  as  a 

remains  the  property  of  the  owner,  or  it  may  be  indirect,  as  wliere 
the  ore,  when  extracted,  is  the  property  of  the  person  in  charge,  but 
is  to  be  sold  by  him,  and  a  part  or  share  of  the  proceeds  is  to  be  paid 
to  tlie  Qwner,  or  for  his  use  or  benefit.  The  legal  effect  would  be  the 
same  in  either  case.  The  purpose  of  the  statute,  obviously,  is  to 
allow  a  lien  for  mining-work  done  upon  a  mine  against  the  estate, 
or  interest  therein,  of  the  person  who  is  to  be  benefited  thereby, 
whether  done  directly  for  him  and  at  his  request,  or  indirectly  for 
his  benefit  at  the  request  of  some  other  person  operating  in  pursu- 
ance of  some  express  or  implied  contract  with  him.  Such  a  case  we 
have  here.  The  lease  is  a  contract;  by  its  covenants  the  lessees 
undertook  to  do  the  mining-work,  and  both  the  lessees  and  the  lessor 
were  to  share  in  the  proceeds  and  benefits  of  the  work.  It  might 
almost  be  said  that  such  person  would  in  such  a  case  be  authorized 
to  bind  the  estate  of  the  owner  for  a  lien  for  such  work  without  the 
aid  of  the  special  statutory  provision  making  him  constructively  the 
agent  of  the  owner  for  that  purpose,  but  with  the  aid  of  the  provision 
there  can  be  no  doubt  of  the  proposition.  There  is  nothing  in  either 
Jurgenson  v.  Diller,  114  Cal.  491,  46  Pac.  Rep.  610,  55  Am.  St.  Rep.  83, 
or  Reese  v.  Bald  Mountain  Consol.  G.  M.  Co.,  133  Cal.  285,  65  Pac.  Rep. 
578,  that  is  contrary  to  this  conclusion.  In  tlie  first  case  the  person 
who  caused  the  ore  to  be  extracted  had  no  authority  from  the  owner 
to  do  so,  and  was  doing  it  for  his  own  exclusive  benefit.  Although 
he  was  occupying  the  premises  with  the  consent  of  the  owner,  he 
was,  as  to  the  mining-work,  a  mere  trespasser.  In  the  latter  case  the 
decision  was  put  upon  the  ground  that  there  was  no  finding  that  the 
person  who  caused  the  work  to  be  done  was  the  'agent  of  the  owner,' 
nor  anything  from  which  such  fact  would  be  necessarily  implied,  nor 
anything  to  show  that  the  owner  was  to  receive,  or  had  received,  any 
benefit  from  or  on  account  of  the  work  done  or  the  ore  extracted.  All 
of  these  facts  appear  in  the  case  at  bar.  Section  1192  of  the  Code  of 
Civil  Procedure  has  no  application  to  mining-work  which  consists  of 
removing  ore  solely  by  the  '  subtractive  process,'  as  it  is  termed  in 
Jurgenson  v.  Diller.  That  section,  by  its  express  terms,  applies  only 
to  'every  building  or  other  improvement  mentioned  in  §1183  of  this 
code,  constructed  upon  any  lands,'  and  hence  does  not  include  or  apply 
to  '  mining '-work,  which  does  not  constitute,  for  any  purpose,  an 
improvement  to  the  mine  or  to  the  land:  Reese  v.  Bald  Mountain 
Consol.  G.  M.  Co.,  133  Cal.  285,  288,  65  Pac.  Rep.  578;  Williams  v.  Santa 
Clara  M.  Assoc,  66  Cal.  193,  200,  5  Pac.  Rep.  85;  Jurgenson  v.  Diller, 
114  Cal.  492,  46  Pac.  Rep.  610,  55  Am.  St.  Rep.  83.  With  respect  to  the 
liens  wholly  or  in  part  for  work  done  for  the  '  purpose  of  opening  up 
new  ore-bodies  and  discovering  better  ore,'  if  such  work  consisted  in 
making  an  'improvement '  to  the  mine  apart  from  or  in  addition  to 
Its  effect  in  obtaining  ore  from  the  rock  excavated,  it  would  come 
within  tlie  provisions  of  §  1192  of  tlie  Code  of  Civil  Procedure.  As  the 
lease  expressly  provider  that  such  work  should  be  done  by  the  lessees 
when  they  deemed  it  expedient,  the  lessor  must  be  presumed  to  have 
had  notice  or  knowledge  of  it  from  the  beginning.  Such  work  would 
also  be  for  the  lessor's  benefit,  either  by  reason  of  the  increased 
receipts  of  net  profits  during  the  lease,  or  from  the  increased  facility 
for  the  extraction  of  ore  from  the  mine  after  the  lease  e.xpired.  It  is 
conceded  that  the  appellant  posted  no  notice  disclaiming  any  liability 
lor  such  work  or  improvement,  and  consequently  its  estate  in  the 
property  stands  charged  with  a  lien  for  the  value  thereof:  Hines  v. 
Miller,  ]  Z2  Cal.  517,   522,   55  Pac.  Rep.  401." 


§  478  mechanics'  liens.  438 

part  of  the  permanent  improvements  of  the  land,  does  not 
free  the  owner  from  the  necessity  of  giving  such  notice.^^ 

§  478.  Same.  Vendee  being  in  possession.  Where  the 
statute  required  notice  of  non-responsibility  in  order  that 
the  owner  might  free  his  interest  from  liability,  and  the  per- 
son contracting  with  the  claimant  entered  into  possession  of 
land  and  began  to  develop  water  by  means  of  a  tunnel,  under 
an  option  of  purchase,  which  provided  that  neither  the  prem- 
ises nor  its  owner  should  be  held  liable  for  labor  performed 
in  the  effort  to  develop  water,  the  owner's  interest  is  subject 
to  liens  filed  upon  the  premises  for  labor  done  after  the 
expiration  of  the  option,  although  it  provided  that  the  con- 
tractor, who  subsequently  became  the  purchaser,  before  the 
liens  were  filed,  during  the  progress  of  the  work  was  to  fur- 
nish at  his  own  cost  all  material  and  labor,  unless  the  owner 
gave  the  statutory  notice,  or  some  notice  equivalent  thereto.^^ 

In  mines  and  mining  claims,  where  the  contract  of  sale  of 
a  mine  authorized  the  vendees  to  work  and  develop  the  same, 
a  certain  percentage  of  the  gross  product  to  be  applied  to 
the  purchase  price,  the  owners  have  notice  of  an  improve- 
ment, which  consisted  of  the  sinking  of  a  shaft,  and  their 
interest  is  subject  to  liens  of  the  vendees'  laborers.^^  But 
where  a  miner  had  knowledge  of  a  contract  under  which  his 
employer  had  the  right  to  take  possession,  develop  and  im- 
prove the  mine,  at  his  own  cost  and  expense,  and  keep  the 
property  free  from  all  liens,  he  has  no  lien  on  the  same,  if  he 
has  knowledge  that  the  employer  did  not  assume  to  act  on 
the  owner's  behalf.^* 

"  W' est  Coast  L.  Co.  v.  Apfleld,  86  Cal.  335,  340,  2*  Pac.  Rep.  993.  See 
"Fixtures,"    §§185   et   seq.,   ante. 

An  agreement  with  a  lessee  or  conditional  purcliaser  tliat  improve- 
ments must  be  at  his  cost,  and  that  the  lessors  or  seller  will  not  be 
liable  for  liens,  will  not,  alone,  satisfy  or  protect  the  land  from  liens: 
Ah  Louis  V.  Harwood,   140  Cal.  500,   506,  74  Pac.  Rep.  41. 

a  Ah  Louis  v.  Harwood,  140  Cal.  500,  506,  74  Pac.  Rep.  41. 

Colorado.  If  the  owner  of  an  undivided  interest  in  the  premises 
permitted  his  vendee  to  take  possession  and  improve  the  same,  and 
the  former  posted  no  notice  of  non-responsibility,  the  interest  of  such 
owner  was  bound  for  liens:  Seely  v.  NeiU  (Colo.),  86  Pac.  Rep.  334 
(under  Laws  1899,  ch.  cxvi-ii,  §  5,  p.   2267). 

23  Hines  v.  Miller,  122  Cal.  517,  55  Pac.  Rep.  401.  See  Birch  v.  Magic 
T.  Co.,  139  Cal.  496,  500,  73  Pac.  Rep.  238;  Ah  Louis  v.  Harwood,  140 
Cal.  500,  506,   74  Pac.  Rep.  41. 

»«  Reese  v.  Bald  Mt.  Cons.  G.  M.  Co.,  133  Cal.  285,  290,  65  Pac.  Rep.  578. 


439  ESTATES   AND   INTERESTS   SUBJECT.  §§479,480 

§  479.  Same.  When  notice  not  required.  Notice  of  non- 
responsibility  is  not  required,  where  not  expressly  provided 
in  the  statute,  under  the  general  rule  heretofore  stated.-^ 
Thus  before  the  amendment  of  1907,  above  quoted,  the  sec- 
tion did  not  apply  to,  nor  Avas  notice  required  to  be  given  by, 
the  owner,  where  the  work  was  done  on  a  house  which  was 
removed  to  a  lot  temporarily,  and  while  thereon  it  was 
merely  personal  property.-'^ 

Before  the  amendment  of  1907,  set  forth  in  a  preceding 
section,  unless  the  work  was  the  construction,  alteration,  or 
repair  of  the  objects  ^^  mentioned  in  section  eleven  hundred 
and  eight^'-three,-^  it  seems  no  such  notice  was  required  to  be 
given  by  the  owner;  for  instance,  where  the  work  consisted 
in  a  subtractive  process,  such  as  "  drifting  in  a  tunnel."  ^^ 

§  480.  Same.  When  notice  not  required  in  case  of  mines 
and  mining  claims.  And  from  the  express  language  of  sec- 
tion eleven  hundred  and  ninety-two,  it  seems  to  apply  only  to 
a  "  building  or  other  improvement  mentioned  in  section 
eleven  hundred  and  eighty-three ;  ^^  but  the  decisions  at  first 
seem  to  declare  that  the  notice  by  the  owner  was  required  in 
the  case  of  work  "  in  a  mining  claim,"  especially  for  struc- 
tures erected  therein,  if  the  owner  desired  to  free  himself 
from  liability ;  ^^  but  the  provision  was  held  inapplicable  to 

"  §§  471,   472,   ante. 

=«  Fresno  L.  &  S.  Bank  v.  Husted  (Cal.,  June  17,  1897),  49  Pac.  Rep. 
195. 

='  See   "Object  of  Labor,"   §§  166  et  seq.,  post. 

Nevada.  See  dissenting  opinion,  Gold  v.  Vi^ise,  18  Nev.  253,  3  Pac. 
Rep.   30. 

-'*   Kerr's   Cyc.   Code  Civ.  Proe.,   §  1183. 

-"  Jurg-enson  v.  Diller,  114  Cal.  491,  492,  46  Pac.  Rep.  610,  55  Am.  St. 
Rep.  83. 

See  §§  144  et  seq.,  ante. 

But  see  amendment  of  1903  to  §  1183,  Code  Civ.  Proc,  Stats,  and 
Amdts.   1903,  p.   84. 

•^»   Kerr's  Cye.  Code  Civ.  Proe.,  §  1183. 

"  Hamilton  v.  Delhi  M.  Co.,  118  Cal.  148,  152,  50  Pac.  Rep.  378;  Sil- 
vester V.  Coe  Q.  M.  Co.,  80  Cal.  510,  513,  22  Pac.  Rep.  217;  Jurgenson 
V.  Diller,  114  Cal.  491,  492,  46  Pac.  Rep.  610,  55  Am.  St.  Rep.  83;  Ayers 
V.  Green  G.  M.  Co.,  116  Cal.  333,  336,  48  Pac.  Rep.  221;  Hines  v.  Miller, 
ir2  Cal.  517,  55  Pac.  Rep.  401.  See  Phelps  v.  Maxwells  Creek  G.  m! 
Co.,  49  Cal.  336  (1868).  But  see  also  Donohoe  v.  Trinity  Consol.  G.  &  S. 
M.  Co.,  113  Cal.  119,  123,  45  Pac.  Rep.  249,  wliere  the  question  of  notice 
was  not  at  all  considered.  To  be  in  perfect  symmetry  with  the  gen- 
eral  interpretation   given   to  the   "object"   mentioned   in   §1183   of   the 


§480 


mechanics'  liens.  440 


the  labor  of  a  miner  in  a  mine."-  Where  improvements  are 
made  in  a  mine  by  persons  other  than  the  owner,  under  cir- 
cumstances which  would  constitute  such  persons  agents  of 

Code  of  Civil  Procedure  (see  §§  166  et  seq.,  ante,  and  §§  130  et  seq., 
ante),  tlie  provision  seems  to  be  applicable  to  "  buildings  and  other 
improvements  "  or  "  structures,"  under  the  first  clause  of  §  1183,  and 
not  to  work  "  in  mining  claims,"  under  the  second  clause  of  that 
section,  even  if  the  work  were  upon  a  "structure  in  a  mining  claim": 
See  §§  130  et  seq.,  ante. 

In  this  connection,  in  a  case  where  a  lien  for  work  was  sought  to 
be  foreclosed  upon  a  mining  claim,  the  court,  speaking  of  §  1192  of 
the  Code  of  Civil  Procedure,  said:  ■'  The  language  of  the  section  last 
recited,  which  treats  of  buildings  and  improvements,  and  of  knowl- 
edge of  the  construction,  etc.,  would  hardly  cover  a  case  like  the 
one  now  before  us":  Williams  v.  Santa  Clara  M.  Assoc,  66  Cal.  193, 
200,  5  Pac.  Rep.  85. 

As  to  the  application  of  provision  for  notice  of  non-responsibility 
under  §  1192,  before  amendment  of  1907,  not  being  applicable  to 
mining  claims,  except  for  structures  erected  thereon,  see  Reese  v. 
Bald  Mi.  Consol.  G.  M.  Co.,   133  Cal.  285,  65  Pac.  Rep.  578. 

Oregon.  Under  mining  lien  law  (Laws  1891,  p.  76),  giving  a  lien 
for  work  and  labor  in  developing  a  mine,  except  as  against  the  owner 
of  a  mine  worked  by  a  lessee,  the  owner's  interest  is  not  bound,  where 
the  holder  of  an  irrevocable,  exclusive  license,  coupled  with  an  inter- 
est, under  which  possession  may  be  maintained  against  all  persons, 
develops  a  mine,  he  being  a  lessee  within  the  intent  of  the  statute: 
Stinson  v.  Hardy,  27  Oreg.  584,  41  Pac.  Rep.  116.  Section  3672  of  Hill's 
Ann.  Laws  refers  to  the  work  and  objects  mentioned  in  §  3669.  There 
is  no  provision  in  the  said  act  giving  a  lien  on  mines  similar  to 
§  3672,  supra. 

^^  Section  1192  of  the  Code  of  Civil  Procedure,  as  it  stood  before 
the  amendment  of  1907,  mentions  every  building  or  improvement 
constructed  upon  lands  with  the  knowledge  of  the  owner,  and  ex- 
pressly provides  for  a  case  where  notice  is  not  given  within  three 
days  after  the  owner  shall  have  obtained  knowledge  of  the  construc- 
tion, alteration,  or  repair,  by  posting  a  notice  in  some  conspicuous 
place  upon  the  land,  building,  or  improvement.  The  section  cannot 
be  held  applicable  to  a  claim  by  a  miner  for  labor  in  a  mine.  Labor  in 
a  mine  is  not  a  building  or  improvement  constructed  upon  lands.  The 
finding  is,  that  appellant  had  full  notice  of  the  contract,  and  of  all 
work  being  done  thereunder.  Even  if  the  complaint  were  sufficient, 
the  finding  does  not  show  that  any  building  or  improvement  was  con- 
structed upon  the  lands  of  appellant  with  its  knowledge.  W'e  think 
tlie  views  herein  expressed  are  supported  by  the  cases  of  Williams  v. 
Santa  Clara  M.  Assoc,  66  Cal.  200,  and  Jurgenson  v.  Diller,  114  Cal. 
491,  492,  46  Pac.  Rep.  610,  55  Am.  St.  Rep.  83.  In  the  latter  case  it  was 
held  that  labor  performed  in  "  drifting  a  tunnel "  is  not  the  con- 
struction, alteration,  or  repair  of  a  building  or  other  improvement, 
under  §  1192  of  the  Code  of  Civil  Procedure;  that  the  doctrine  of 
notice  does  not  apply  when  the  work  consists  of  a  subtractive 
process,  —  the  removal  of  the  verj'  corpus  of  the  property.  It  was 
said:  "As  well  require  one  who  sees  a  trespasser  cutting  his  timber 
to  post  notice  of  his  nonrliability,  under  penalty  of  liaving  his  land 
subjected  to  a  lien  for  the  labor":  See  Reese  v.  Bald  Mt.  Consol.  G.  M. 
Co.,   133  Cal.  285,  291,   65  Pac.  Rep.   578. 


441  ESTATES    AND   INTERESTS   SUBJECT.  §  481 

the  owner,  it  has  been  said  that  the  doctrine  of  notice  has  no 
application.^^ 

Personal  property  on  mine.  A  person  owning  personal 
property  situated  on  a  mine  is  not  the  "  owner  "  of  the  mine, 
nor  has  he  such  an  interest  therein  as  would  require  him  to 
post  a  notice  of  non-responsibility,  to  avoid  mechanics'  liens 
attaching  to  such  personal  property.^*  A  person  performing 
labor  in  a  niining  claim,  for  one  having  a  contract  of  pur- 
chase thereof,  to  which  the  latter  has  annexed  mining  ma- 
chinery leased  by  him,  under  a  lease  the  terms  of  which  were 
sufficient,  as  between  himself  and  the  lessor,  to  continue  the 
identity  of  the  machinery  as  the  personal  property  of  the 
lessor  before  the  amendment  of  section  eleven  hundred  and 
ninety-two  in  1907,  was  not  entitled  to  a  lien  upon  such  prop- 
erty ;  ^^  for,  where  mining  machinery,  before  such  amend- 
ment, was  placed  upon  a  mine  under  a  contract  by  which  the 
same  machinerj'^  was  leased  to  the  vendees  of  the  mine  in  pos- 
session of  and  operating  same,  and  by  the  terms  of  which 
lease  the  machinery  retained  its  character  as  personal  prop- 
erty, the  lessor  need  not  give  notice  of  non-responsibility,  to 
prevent  a  lien  from  attaching  to  the  machinery.^'' 

§  481.  Same.  Notice  not  required  in  case  of  grading  and 
other  work  in  incorporated  cities.  It  has  been  determined 
that  the  provision  as  to  notice  by  the  owner  does  not  apply 
to  work  done  under  section  eleven  hundred  and  ninety-one 
of  the  Code  of  Civil  Procedure,^"  such  as  the  grading  of  lots 
in  incorporated  cities,  which  is  not  the  "  construction  .  .  . 
of  any  building  or  other  improvement,"  mentioned  in  section 

33  Hines  v.  Miller,  122  Cal.  517,  519,  55  Pac.  Rep.  401. 

New  Mexico.  Co-owners  failing  to  post  notice  required  by  §  2226, 
Comp.  Laws  1897,  claimants  have  lien  on  the  entire  claim,  where  such 
co-owners  authorize  other  co-owners  and  others  to  place  mining 
machinery  upon  the  claim  and  do  mining  thereon:  Post  v.  Fleming, 
10  N.  M.   476,  62  Pac.   Rep.   1087. 

3*  Jordan  v.  Myres,  126  Cal.  565,  567,  58  Pac.  Rep.  1061  (before 
amendment  of   1907). 

Lease  of  per.sounl  iiroperty,  such  as  unafRxed  machinery  in  mines. 
In  1896,  was  not  provided  for  in  the  statute,  and  hence  gave  no 
notice:    Jordan  v.   Myres,   126  Cal.   565,   567,   58  Pac.   Rep.   1061. 

3=  Jordan  v.  Myres,   126  Cal.  565,  567,  58  Pac.  Rep.   1061. 

»«  Jordan  v.  Myres,  126  Cal.  565.  567,  58  Pac.  Rep.  1061. 

»'  Kerr's  Cyc.  Code  Civ.  Proc,  §  1191. 


§  482  mechanics'  liens.  442 

eleven  hundred  and  eighty-three  of  that  code,"'^  in  accord- 
ance with  the  rule  mentioned  in  preceding  sections. ^^ 

§  482.     Same.     Notice  not  required  in  case  of  prior  liens. 

The  provision  as  to  notice  of  non-responsibility  does  not 
apply  to  nor  affect  the  interest  of  a  prior  vendor's  lien.*"  or 
a  mortgagee  under  a  recorded  mortgage,  for  the  mortgage 
is  not  such  an  "  interest  in  thfe  land  "  on  which  the  building 
or  improvement  may  be  constructed,  within  the  meaning  of 
the  provision ;  and  in  this  connection  the  court  has  said :  "  It 
seems  sufficiently  plain  that  the  section  of  the  code  refers  to 
an  estate  or  interest  in  land  which  may  be  sold  and  con- 
veyed, and  does  not  provide  that  a  mere  lien  shall  become 
'  subject '  to  another  subsequent  lien,  in  the  sense  that  the 
later  lien  shall  acquire  precedence  over  the  prior."  *^ 

Deed  of  trust.  Nor  does  the  rule  apply  to  the  interest  of  a 
person  holding  under  a  deed  of  trust  as  security.*^ 

5s  Santa  Cruz  R.  P.  Co.  v.  Lyons,  117  CaL  212,  214,  48  Pac.  Rep.  1097, 
59  Am.  St.  Rep.  174;  Santa  Cruz  R.  P.  Co.  v.  Lyons,  133  Cal.  114,  118, 
65  Pac.  Rep.  329. 

■>"  §§  471,  472,  ante. 

*»  Kuschel  V.  Hunter  (Cal.,  Sept.  14,  1897),  50  Pac.  Rep.  397. 

"  W'illiams  v.  Santa  Clara  M.  Assoc,  66  Cal.  193,  201,  5  Pac.  Rep. 
85,  4  W'est  Coast  Rep.  616;  the  court  also  saying-  (p.  200),  "It  is  very- 
plain  'the  owner  or  person  having-  or  claiming  an  interest'  in  the 
lands  on  which  an  improvement  is  erected,  is  not  the  person  referred 
to  in   §  1186  as  having  a  '  lien,  mortgage,   or  encumbrance.'  " 

See  "Priorities,"  §§486  et  seq.,  post. 

Compare:  Soule  v.  Dawes,  14  Cal.  247,  where  it  was  held  that  the 
interest  of  a  mortgagee  was  subject  to  a  lien  for  extra  work  com- 
menced after  the  mortgage  was  given,  under  a  general  provision  in 
the  contract  for  extra  work,  provided  the  work  was  done  with  the 
knowledge  of  the  mortgagee  and  without  objection  from  him.  Same 
point  similarly  decided  in  Capron  v.  Strout,  11  Nev.  313.  See  Haxtun 
S.  H.  Co.  V.  Gordon,  2  N.  D.  246,  251,  50  N.  W.  Rep.  708,  33  Am.  St.  Rep. 
776,  779  (distinguishing  Soule  v.  Dawes  on  the  facts,  but  holding  the 
lien  prior  to  the  mortgage  on  the  facts). 

As  to  priority  of  mechanic's  lien  over  mortgage,  see  note  33  Am. 
St.  Rep.   783. 

Oreson.  Capital  L.  Co.  v.  Ryan,  34  Oreg.  73,  54  Pac.  Rep.  1093, 
citing  Williams  v.  Santa  Clara  M.  Assoc,  66  Cal.  193,  200,  5  Pac.  Rep. 
85,  4  W'est  Coast  Rep.  616. 

«  wniliams  v.  Santa  Clara  M.  Assoc,  66  Cal.  193,  200,  5  Pac.  Rep.  85, 
4  W^est  Coast  Rep.  616;  and  see  Kuschel  v.  Hunter  (Cal.,  Sept.  14,  1897), 
50  Pac.  Rep.  397  (dictum);  and  see  W^eber  v.  McCleverty,  149  Cal.  316, 
322.  323,  86  Pac.  Rep.  706-;   see  "Priorities,"  §§486  et  seq.,  post. 

Contra:    Fuquay  v.  Stickney,  41  Cal.  588,  586. 


443  ESTATES    AND    INTERESTS    SUBJECT.  §§  48.J,  484 

§  483.  Same.  Effect  of  knowledge  of  claimant  of  lack  of 
authority  of  person  making  improvement.  Where  the  claim- 
ant has  actual  notice  that  tlie  owner  did  not  authorize  the 
work,  and  that  the  person  having  charge  of  a  mining  claim 
does  not  own  the  property,  and  was  not  authorized,  there  is 
no  lien.^"  As  indicated  in  the  note,  this  subject  has  been 
touched  upon  in  a  preceding  section  of  this  work. 

§  484.  Same.  Notice,  when  to  be  posted.  Under  section 
eleven  hundred  and  ninety-two,"**  notice  may  be  posted 
within  the  statutory  period  after  construction  has  been 
actually  begun  by  a  lessee,  notwithstanding  the  fact  that  the 
owner  had  knowledge  of  the  intention  to  construct  before  the 
commencement  thereof.*^  Whoever  drafted  the  section  above 
referred  to  may  have  concluded,  when  he  had  framed  the 
expression,  "  knowledge  of  the  construction,"  etc.,  that  it 
might  be  understood  to  mean  the  completion  of  the  work, 
and  so  added  the  expression,  "  or  the  intended  construction," 
etc.,  for  the  purpose  of  greater  clearness,  thinking  that  the 
actual  commencement  of  the  improvement  would  thus  be 
more  clearl}^  indicated.  The  phrase,  "  intended  construc- 
tion," is  susceptible  of  a  different  meaning  than  if  it  read, 
"  or  the  intention  to  construct,"  etc.  However  this  may  be, 
the  statute  should  be  given  an  interpretation  that  would  best 
answer  its  purposes,  and  this  can  be  ascertained  by  keeping 
in  mind  the  various  conditions  to  which  the  law  must  be  ap- 
plied. Contracts  for  the  sale  as  well  as  for  the  leasing  of 
land  conditional  on  its  improvement  by  the  purchaser  or 
lessee  at  some  future  time,  are  quite  common.  This  contem- 
plated improvement  may  be  for  a  short  period,  or  it  may  be 
for  one  or  more  years,  the  work  not  to  begin  for  many 
months,  or  even  years,  in  the  indefinite  future,  and  the  con- 

"  Jurg-enson  v.  Diller,  114  Cal.  491,  492,  46  Pac.  Rep.  610,  55  Am. 
St.  Rep.  83;  and  see  Silvester  v.  Coe  Q.  M.  Co.,  80  Cal.  510,  513,  22  Pac. 
Rep.  217    (the  employer,  apparently,  had  no  interest  in  the  property). 

See  §  475,  ante. 

**  Kerr'.s  Cyc.   Code  Civ.  Proc,   §  1192. 

«  Birch   V.  Magic  T.  Co.,   139  Cal.  496,   500,   73  Pac.  Rep.   238. 

(lueMti<>n  ^viicther  notice  pcsted  ^vitliin  three  days  nfter  knowIedKe 
of  the  intended  future  construction  of  a  building  by  a  lessee  would, 
in  all  cases,  be  sufficient  to  protect  the  owner,  not  decided  in  Bircli  v. 
Magic  T.  Co.,  supra. 


§  -184  mechanics'  liens.  444 

tract  or  its  terms  may  be  unknown  to  the  laborer  or  material- 
man who  in  this  distant  future  is  to  furnish  labor  or  material 
for  the  improvement.  The  owner  would  be  charged  with 
knowledge  of  the  intended  work  as  soon  as  he  signs  the  con- 
tract, and,  under  such  circumstances,  it  has  been  contended 
that  he  must  within  three  days  post  his  notice  or  lose  his 
protection  against  the  lien ;  but,  on  the  other  hand,  if  he  post 
such  notice,  it  is  not  at  all  likely  that  it  would  remain  posted 
and  be  conspicuous  when,  in  the  future,  the  laborers  and 
material-men  would  be  called  upon  to  furnish  labor  and 
material,  and  yet  the  owner  would  be  protected.  If,  however, 
the  owner  posted  his  notice  within  three  days  after  the  actual 
construction  began,  the  persons  interested  could  not  fail  to 
observe  it,  and  would  govern  themselves  accordingly.  It  is 
a  much  better  protection  to  the  laborers  and  material-men, 
and  equally  subserves  to  protect  the  owner,  to  hold  the 
notice  posted  by  the  owner  "  within  three  days  after  he  shall 
have  obtained  knowledge  of  the  construction "  (i.  e.,  the 
actual  beginning  of  the  w^ork)  to  be  in  time,  and  such  is  the 
notice  referred  to  in  the  statute.  Whether  or  not  a  notice 
posted  within  three  days  after  knowledge  of  the  intended 
construction  would  in  all  cases  be  sufficient  to  protect  the 
owner  is  a  question  not  yet  decided.  A  failure  to  give  such 
a  notice  within  three  days  after  he  has  obtained  knowledge 
of  the  actual  commencement  of  the  work  does  not  deprive 
him  of  the  protection  given  him  by  the  statute.*^ 

^"^  In  Bvans  v.  Judson,  120  Cal.  282,  52  Pac.  Rep.  585,  the  lease  con- 
templated improvements  within  a  short  period  in  the  future,  and  the 
owner  posted  no  notice  disclaiming-  responsibility.  It  was  held  that 
the  landlord,  who  was  to  benefit  by  the  improvements,  was  charged 
by  the  lease  with  knowledge  of  the  actual  improvement.  So  held, 
also,  in  Hines  v.  Miller,  122  Cal.  517,  55  Pac.  Rep.  401. 

In  FinjMay  v.  Stickney,  41  Cal.  583,  the  case  arose  under  the  act  of 
1867-68.  The  court  said:  "If  the  owner  of  land  .  .  .  knowingly  per- 
mits buildings  and  improvements  to  be  erected  on  it  without  giving 
notice  that  it  is  done  without  his  consent,  it  is  eminently  just  that  he 
shall  be  held  to  have  acquiesced  in  it."  "In  the  cases  cited,  and 
others  we  have  examined,  no  notice  was  given,  and  the  point  decided 
was,  that,  having  authorized  the  improvements,  the  owner  is  charged 
with  knowledge  that  they  are  to  be  made;  but  we  find  no  case 
deciding  at  wliat  particular  time  the  notice  must  be  given":  Birch  v. 
Magic  T.  Co.,   139  Cal.  496,   500,   73  Pac.   Rep.   238. 

"  To  hold  that  the  statute  compels  the  owner  to  give  the  notice 
TTithin  three  days  after  he  has  knowledge  of  the  intended  construc- 
tion would,  in  most  cases,  give  no  effect  to  the  provision  as  to  notice, 


445  ESTATES    AND    INTERESTS   SUBJECT.  §  485 

§  485.     Same.     Notice,    how  posted.     Conspicuous   place. 

The  section  mentioned  in  the  preceding  sections/"  as 
amended  in  1907,  provides  that  the  notice  of  non-responsi- 
bihty  must  be  posted  "  in  some  conspicuous  place  upon  said 
land  or  mining  claim  or  claims,  or  upon  the  building  or  other 
improvements  situated  thereon,"  othervrise  it  will  not  be 
sufficient,  unless  the  claimant  had  actual  knowledge  that 
such  a  notice  had  been  posted,*^ 

where  he  had  knowledge  of  the  actual  construction.  But  we  cannot 
say  that  the  legislature  had  no  object  in  making-  this  provision.  It 
would  be  more  reasonable  to  suppose  that  it  was  intended  to  provide 
that  the  owner  might  give  the  notice  within  three  days  after  the 
actual  construction  was  commenced":  Birch  v.  Magic  T  Co  139  Cal 
496,  498,  500,  73  Pac.  Rep.  238. 

"  See  §§  473  et  seq.,  ante. 

^«  Silvester  v.  Coe  Q.  M.  Co.,  80  Cal.  510,  513,  22  Pac.  Rep.  217. 

Recording  notice  of  non-responsibility:  See  Kerr's  Cyc.  Code  Civ. 
Proe.,  §  1192,  Kerr's  Stats,  and  Amdts.  1906-07,  p.   481. 

Nevada.  Personal  notice  was  held  to  be  insufficient,  in  Rosina  v. 
Trowbridge,  20  Nev.  105,  17  Pac.  Rep.  751. 

Oregon.  Where  a  notice  is  posted  in  good  faith  by  the  owner, 
with  the  intent  and  purpose  that  it  should  remain  as  long  as  a  notice 
would  remain  in  a  place  of  that  nature  under  ordinary  conditions, 
the  presumption  is  that  it  remained  a  sufficient  length  of  time  to 
impart  knowledge  to  the  persons  it  is  intended  to  affect,  and  the 
failure  to  show  the  length  of  time  the  notice  remained  posted  is 
immaterial:  Marshall  v.  Cardinell,  46  Oreg.  410,  80  Pac.  Rep.  652 
(under  Bellinger  and  Cotton's  Ann.  Codes  and  Stats.,  §  5643). 

Where  notice  wa.s  posted  on  front  of  building  bordering;  on  public 
street,  and  its  position  was  such  that  it  could  readily  be  observed  by 
persons  entering  the  building,  both  by  a  stairway  and  upon  the  first 
floor,  the  conspicuousness  of  the  place  was  commended:  Marshall  v 
Cardinell,  46  Oreg.  410,  80  Pac.  Rep.  652  (under  Bellinger  and  Cotton's 
Ann.  Codes  and  Stats..   §  5643). 

Notice  posted  in  little  recess  on  a  partition  wall  several  feet  back 
from  street,  not  easily  seen,  was  not  posted  in  a  conspicuous  place 
under  Hill's  Ann.  Laws,  §  3672,  and  knowledge  by  a  claimant  of  such 
posting,  after  furnishing  materials,  will  not  relieve  the  owner's 
property  from  liability:  Nottingham  v.  McKendrick,  38  Oreg  495  fi^ 
Pac.  Rep.  822,  59  Id.  195. 


§  486  mechanics'  liens.  446 


CHAPTER     XXV. 

LIMITATIONS    ON    LIENS    (CONTINUED).      PRIORITIES. 

§  486.  Scope  of  chapter. 

§  487.  Priorities  between  mechanics'  liens  and  other  estates  or 
interests,  or  other  classes  of  liens. 

§  488.  Same.     Statutory   statement   of   rule. 

§  489.  Same.     General   analysis  of   provision. 

§  490.  Same.     Grants   and   conveyances. 

§  491.  Same.     Doctrine   of  relation. 

§  492.  Same.     Lien  for  materials. 

§  493.  Same.  Contractors  and  subcontractors.  Void  contract. 
Homestead. 

§  494.  Same.     Parts  of  day. 

§  495.  Same.     General  rule. 

§  496.  Same.     Mortgage  for  purchase  price. 

§  497.  Same.     Mortgage  for  future  advances. 

§  498.  Same.     What  constitutes   "  further   advances." 

§  499.  Same.     Reformation  and  alteration  of  instruments. 

§  500.  Same.  When  lien  claimants  may  attack  prior  encumbran- 
ces. 

§  501.  Same.     Garnishment   by   creditor. 

§  502.  Same.     Lien  on  two  or  more  buildings.     Statutory  provision. 

§  503.  Same.  When  provision  as  to  two  or  more  buildings  appli- 
cable. 

§  504.  Priorities    inter    sese.     Statutory    provision. 

§  505.  Same.     Nature  of  provision. 

§  506.  Same.     Effect  of  constitution  on  statutory  provision. 

§  507.  Same.     Insufficient    proceeds.     Prorating. 

§  486.  Scope  of  chapter.  In  the  last  preceding  chapters 
the  subject  of  the  estates  and  interests  subject  to  mechanics' 
liens  has  been  considered  absolutely,  and  without  reference 
to  their  relative  value  as  affected  by  other  estates,  interests, 
or  liens. ^  In  this  chapter  will  be  treated  the  latter  subject, 
or  the  ranking  of  mechanics'  liens  Avith  reference:  1.  To 
other  estates,  interests,  or  other  classes  of  liens;  and  2.  As 
between  mechanics'  liens  themselves. 

>  See  §  439,  ante. 


447  PRIORITIES   OF    LIENS.  §  487 

§  487.  Priorities  between  mechanics'  liens  and  other  es- 
tates or  interests,  or  other  classes  of  liens.-  In  the  absence  of 
any  statutory  provisions  as  to  record  or  notice,  liens  have 
precedence  over  other  estates  or  interests,  or  other  classes  of 
liens,  in  accordance  with  the  maxim,  Qui  prior  est  tempore, 
potior  est  jure,  —  He  who  is  prior  in  time  is  stronger  in 
right.^  Claimants  are,  under  such  circumstances,  charged 
with  notice  as  to  unrecorded  mortgages.*    On  the  other  hand, 

*  As  to  priority  of  meclianics'  liens  over  mortgage  for  advances,  see 

7  Am.  &  Eng-.  Ann.  Cas.   617,   624. 

As  to  priority  of  mechanics'  liens  generally,  see  note  13  L.  R.  A.  705. 

As  to  marshaling  of  liens,  see  Dunlop  v.  Kennedy  (Cal.,  Aug.  31, 
1893),   34  Pac.  Rep.   92.   95    (rehearing  granted). 

Idaho.  See  dissenting-  opinion,  PacifT?>  States  S.  L.  &  B.  Co.  v. 
Dubois,   11   Idaho  319,  83  Pac.   Rep.   513,   521. 

Oregon.     See  Gaines  v.  Childers,   38  Greg.   200,   63  Pac.   Rep.   487. 

Marshaling  assets:  See  Smith  v.  Wilkins,  38  Greg.  583,  588,  64  Pac. 
Rep.   760,   761. 

Utah.  See  Cahoon  v.  Fortune  M.  &  M.  Co.,  26  Utah  86,  72  Pac.  Rep. 
437.  See  Fields  v.  Daisy  G.  M.  Co.,  26  Utah  373,  73  Pac.  Rep.  521,  s.  c. 
25  Utah    76,   69  Pac.   Rep.   528,   529. 

Washington.  Stipulation  as  to  priorities  not  to  affect  other  lien 
claimants:  See  Potvin  v.  Dennj'  Hotel  Co.,  9  Wash.  316,  37  Pac.  Rep. 
320,  38  Pac.  Rep.  1002.  As  to  priority  of  logger's  lien,  see  Jewett  v. 
Darlington,  1  Wash.  601   (U.  S.). 

As  to  priority  of  farm-laborers'  liens  on  crops,  see  Pierce's  Code, 
§  6127.    and    notes. 

As  to  lien  on  franchises,  etc.,  under  L.a'tvs  1897,  p.  55,  §  1,  see  Fitcli 
V.  Applegate,  24  Wash.  25,  31,  64  Pac.  Rep.  147. 

■'  Preston  v.  Sonora  Lodge,  39  Cal.  116,  118  (dictum);  Williams  v. 
Santa  Clara  M.  Assoc,  66  Cal.  193,  199,  5  Pac.  Rep.  85,  4  W'est  Coast 
Rep.  616  (dictum).  See  Cahoon  v.  Levy,  6  Cal.  296,  298,  65  Am.  Dec.  515; 
Walker  v.  Hauss-Hijo,  1  Cal.  183,  186;  Wilson  v.  Donaldson,  121  Cal.  8, 
10,  53  Pac.  Rep.  404,  43  L.  R.  A.  524,  66  Am.  St.  Rep.  17  (crops  as  per- 
sonal property;  priority  with   reference  to  chattel  mortgage). 

Colorado.  The  right  to  a  lien  cannot  impair  a  valid  lien  by  deed  of 
trust  upon  the  land,  which  is  recorded  prior  to  the  time  when  the 
mecJianic's  lien  attached;  but,  in  the  absence  of  special  circumstances, 
the  latter  may  take  precedence  with  regard  to  the  building:  Joral- 
mon  V.  McPhee.  31  Colo.  26,  71  Pac.  Rep.  419. 

I'riority  of  lien  of  mortgage  on  land,  and  subordination  thereof 
^vitli  reference  to  the  building:  See  Jorahnon  v.  McPhee,  31  Colo.  26, 
71   Pac.  Rep.  419.     See  also  7  Am.  &  Eng.  Ann.  Cas.  617,  624. 

Hawaii.  Time  of  filing,  the  test  of  priority  under  the  statute: 
Lucas  V.  Redward,  9  Hawn.  23,  26. 

.llontana.  Priority  between  mechanic's  lien  and  attachment  lien: 
See  A.  M.  Holter  H.  Co.  v.  Ontario  M.  Co.,  24  Mont.  184,  61  Pac.  Rep.  3. 

*  Rose  V.  Munie,  4  Cal.  173,  175.  See  Soule  v.  Dawes,  7  Cal.  576,  14 
Cal.    247. 

See  notes,   §§  469  et  seq.,  ante. 

Record  notice  limited  to  subsequent  mortgagees  and  purchasers: 
Denni*  v.  Burritt,  6  Cal.  670,  672,   673;    Pepley  v.  Huggins,   15  Cal.   127, 


§  488  mechanics'  liens.  448 

persons  dealing  with  the  property  during  the  progress  of  the 
work  are,  independently  of  any  statutory  rule,  charged  with 
notice  of  the  claims  of  mechanics;^  and  when  the  lien  has 
once  attached,  grants  and  encumbrances  do  not  affect  the 
lien.® 

§  488.  Same.  Statutory  statement  of  rule.  As  between 
lien-holders  under  the  mechanic's-lien  statute  and  third 
parties,  the  statutory  provision '  substantially  follows  the 
general  equitable  maxim  quoted  in  a  preceding  section;^  as 
applied  to  the  recording  statute,  as  follows :  "  The  liens  pro- 
vided for  in  this  chapter  are  preferred  to  any  lien,  mortgage, 
or  other  encumbrance  which  may  have  attached  subsequent 
to  the  time  when  the  building,  improvement,  or  structure 
was  commenced,  work  done,  or  materials  were  commenced 
to  be  furnished;  also,  to  any  lien,  mortgage,  or  other  encum- 
brance of  which  the  lien-holder  had  no  notice,  and  which  was 

132;  McCabe  v.  Grey,  20  Cal.  509,  516.  See  Miller  v.  Stoddard,  50 
Minn.  272,  276,  52  N.  W.  Rep.  895;  Sharon  v.  Minnick,  6  Nev.  377,  391; 
Adams  v.  Baker,  24  Nev.  162,  169,  51  Pac.  Rep.  252,  77  Am.  St.  Rep.  799. 

Colorado.  The  lien  has  precedence  over  a  prior  mortgage  upon  the 
land  upon  which  the  improvement  is  erected,  where  the  mortgage  is 
given  in  the  usual  way,  without  intent  that  it  shall  cover  the  im- 
provements, and  the  lien  claimants  have  no  notice  that  it  does  so: 
Joralmon  v.  McPhee,  31  Colo.  26,  71  Pac.  Rep.  419,  421  (under  provis- 
ions Mills's  Ann.  Stats.,  §  2884). 

Utah.     Sanford  v.  Kunkel,   85  Pac.  Rep.  363,   365,   1012. 

Mortgage  for  advances  for  building  purposes  not  subject  to  the 
rule.  The  court  say:  "Where  mechanics  and  material-men  have 
notice  of  a  mortgage  which  is  given  expressly  for  the  purpose  of 
securing  funds  to  construct  an  improvement,  and  know  that  the 
funds  thus  obtained  are  being  applied  in  that  way,  their  rights  must 
be  held  subordinate  to  those  of  the  mortgagee,  to  the  extent  of  such 
advances,  because  of  this  knowledge.  In  other  words,  when  they 
know  that  a  structure  upon  which  they  are  engaged  has  been  pledged 
as  a  security  for  advances  towards  its  construction  by  a  contract 
entered  into  before  the  work  of  erection  was  commenced,  they  are 
bound  by  such  arrangement,  up  to  the  extent  that  funds  under  such 
contract  are  actually  advanced  and  applied  to  construct  the  building": 
Joralmon  v.  McPhee,  supra,  citing:  Kiene  v.  Hodge.  90  Iowa  212.  57 
N.  W.  Rep.  717;  Hoagland  v.  Lowe,  39  Neb.  397,  58  N.  W.  Rep.  197; 
Patrick  Land  Co.  v.  Leavenworth,  42  Neb.  715,  60  N.  W.  Rep.  954; 
James  River  L.  Co.  v.  Danner,  3  N.  D.  470,  57  N.  W.  Rep.  343;  Anglo- 
American  S.  &  L.  Assoc.  V.  Campbell,  13  D.  C.   581,  43  L.  R.  A.  632. 

=  Soule  V.  Dawes,  7  Cal.  575.  577,  s.  c.  14  Cal.  247,  256;  Crowell  v. 
Gilmore,    13    Cal.    54,    57. 

«  Gaskill  V.  Moore,  4  Cal.   233,   235. 

'  Kerr's  Cyc.  Code  Civ.  Proc,   §  1186. 

•  See  §  487,  ante. 


449  PRIORITIES  OF  LIENS.  §§  489, 490 

unrecorded  at  the  time  the  buildiiig,  improvement,  or  struc- 
ture was  commenced,  work  done,  or  the  materials  were  com- 
menced to  be  furnished."  ® 

§  489.  Same.  General  analysis  of  provision.  The  first 
clause  of 'the -statutory  provision  set  forth  in  the  last  preced- 
ing section  has  reference  to  "  subsequent  "  encumbrancers, 
and  the  second  clause  to  "  prior  "  encumbrancers.^*^ 

Valid  or  void  original  contract.  Under  this  provision  of 
section  eleven  hundred  and  eighty-six,^^  the  cases  must  be 
divided  into  two  categories,  distinguished  by  the  existence  or 
non-existence  of  a  valid  original  contract.  In  the  former 
case,  the  priority  of  the  liens  is  to  be  determined  by  the  date 
of  the  commencement  of  the  building;  in  the  latter,  by  the 
time  the  work  was  done  or  the  materials  were  commenced  to 
be  furnished.^^ 

§  490.  Same.  Grants  and  conveyances.  It  will  be  noticed 
that  the  provisions  of  section  eleven  hundred  and  eighty- 
Bix  ^^  do  not  expressly  mention  grants  and  conveyances  of 
real  property,  but,  under  the  general  principles  of  priorities, 
which  have  their  enunciation  in  the  Civil  Code,^*  it  is  thought 
that  these  liens  take  precedence  over  subsequent  "  grants  " 

'  liien  relates  back  to  the  time  the  work  was  done  or  the  material 
commenced  to  be  furnished  for  which  lien  is  claimed,  and  the  lien  lias 
priority  over  a  deed  of  trust  executed  about  a  year  after  the  com- 
mencement of  such  work  and  the  furnishing-  of  such  material:  Farn- 
ham  V.  California  S.  D.  &  T.  Co.  (Cal.  App.,  May  18,  1908),  96  Pac.  Rep. 
788. 

L'tah.  Carey-Lombard  L.  Co.  v.  Partridge,  10  Utah  322,  37  Pac. 
Rep.    572. 

AVasliington.  Nason  v.  Northwestern  M.  &  P.  Co.,  17  Wash.  142,  49 
Pac.  Rep.  235.     See  Bell  v.  Groves,  20  Wash.  602,  56  Pac.  Rep.  401. 

"  This  provlMion  has  no  reference  t«  itriority  an  between  elainiantH 
Of  liens  for  labor  or  materials  as  between  tliemselves,  since  this  is 
provided  for  by  Kerr's  Cyc.  Code  Civ.  Proe.,  §1194;  treated  in  §§504 
et  seq.,   post. 

"  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1186. 

"  McClain  v.  Hutton,  131  Cal.  132,  135,  144,  61  Pac.  Rep.  273,  63  Id. 
182,  622.  See  Davies-Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  642,  22 
Pac.  Rep.  860;  Avery  v.  Clark,  87  Cal.  619,  25  Pac.  Rep.  919,  22  Am. 
St.  Rep.  272;  Pacific  M.  L.  I.  Co.  v.  Fisher,  106  Cal.  224.  236,  39  Pac. 
Rep.    758. 

See  §  491,  post. 

"   Kerr's  Cyc.  Code  Civ.  Proc,  §  1186. 

"  See  Kerr's  Cyc.  Civ.  Code,  §§  2897  et  seq.,  and  notes. 
Mech.  Liens  —  29 


§  491  mechanics'  liens.  450 

and  "  conveyances,"  and  also  over  prior  unrecorded  grants 
and  conveyances,  although  the  section  expressly  refers  only 
to  "  liens,  mortgages,  and  other  encumbrances."  ^^ 

§  491.  Same.  Doctrine  of  relation. ^'^  To  determine 
whether  an  encumbrance  is  prior  or  subsequent  in  point  of 
time,  resort  is  had  to  the  doctrine  of  relation,  and,  as  ex- 
pressed in  section  eleven  hundred  and  eighty-six,^'  the  time 
when  the  ''  building,  improvement,  or  structure  was  com- 
menced, work  done,  or  materials  were  commenced  to  be  fur- 
nished," fixes  the  point  of  time  to  which  these  liens  relate. ^^ 

"  The  California  statute,  notwithstanding  the  general  statement  of 
some  of  the  decisions,  regards  the  building,  at  least  for  certain  pur- 
poses, as  a  fixture  to  the  land,  and  does  not  provide  for  priority  of 
the  lien  over  prior  mortgages,  etc.,  so  far  as  the  Improvements  are 
concerned,  as  is  the  case  in  other  statutes  herein  considered. 

In  Hotalins  v.  Cronise,  2  Cal.  60,  64,  decided  under  the  act  of  1850 
(§  9),  which  provided  that  the  "lien  shall  be  preferred  to  every  other 
lien  or  encumbrance  which  attached  subsequent  to  the  time  at  whicli 
the  work  was  commenced  or  materials  were  furnished,"  it  was  held 
that  the  transfer  of  the  property  before  the  lien  was  filed  for  record 
did  not  affect  the  lien.  See  Gaskill  v.  Moore,  4  Cal.  233,  235;  Soule  v. 
Dawes,  7  Cal.  576,  577:  McGreary  v.  Osborne.  9  Cal.  119,  125  (1856); 
and  Shuffleton  v.  Hill,  63  Cal.  483,  6  West  Coast  Rep.  436.  But  see 
Montrose  v.  Conner,  8  Cal.  344,  347  (1855),  where  a  subsequent  pur- 
chaser  had  no   notice. 

Colorado.  See  Mellor  v.  Valentine,  3  Colo.  255  (unrecorded  bond  to 
reconvey);  Tritch  v.  Norton,  10  Colo.  337,  15  Pac.  Rep.  680  (1881); 
Marean  v.  Stanley,  5  Colo.  App.  340  (taking  notice  of  parts  of  day). 

Montana.  Under  Comp.  Stats.  1887,  §§  1374,  1376,  the  lien  of  a  me- 
chanic as  to  the  improvement  was  superior  to  a  prior  mortgage  on 
the  land;  but  as  to  the  land  itself,  the  prior  mortgage  maintained 
precedence;  and  therefore  where  a  claimant  did  not  erect  a  building 
nor  place  such  improvement  upon  a  mining  claim  as  was  susceptible 
of  removal,  his  lien  yielded  to  a  prior  mortgage:  Johnson  v.  Puritan 
M.  Co..  19  Mont.  30,  47  Pac.  Rep.  337.  See  Grand  Opera  House  Co.  v. 
Maguire,  14  :Mont.  558,  37  Pac.  Rep.  607;  Montana  L.  &  M.  Co.  v.  Ob- 
elisk M.  Co.,  15  Mont.  24,  37  Pac.  Rep.  897;  Murray  v.  Swanson,  18  Mont. 
533.  46  Pac.  Rep.  441;  Mason  v.  Germaine,   1  Mont.  273   (1865). 

Utah.  A  conveyance  procured  in  fraud  of  a  mechanic's  lien  will 
not  have  the  effect  of  precluding  the  foreclosure  of  the  lien,  although 
notice  of  the  lien  be  filed  subsequent  to  the  purchase,  but  within  the 
statutory  limit:  and  where  one  purchased  property  to  which  a  valid 
lien  has  attached,  it  is  to  be  presumed  that  the  price  was  fixed  with 
reference  to  the  encumbrance,  or  that  the  purchaser  secured  himself 
from  liens  in  some  other  way:  Ellis  v.  Breisacher,  8  Utah  108,  29 
Pac.  Rep.   879. 

"  As  to  relation,  see  notes  7  Am.  &  Eng.  Ann.  Cas.  624;  16  L.  R.  A. 
335. 

"  Kerr's   Cye.   Code   Civ.   Proc.,   §  1186. 

1"  Davies-Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641.  64S,  22  Pac. 
Rep.   860    (material);  Germania  B.  &  L.  Assoc,  v.  Wagner,   61   Cal.  349, 


451  PRIORITIES   OF   LIENS.  §  491 

Lien  on  mine.  Relation  back.  Work  done  on  a  mine,  con- 
sisting of  breaking  down  and  tearing  away  from  the  face  of 

354  (materials);  Barber  v.  Reynolds,  44  Cal.  519,  533  (1862);  McCrea 
V.  Craig-,  23  Cal.  522,  525;  Soule  v.  Dawes,  7  Cal.  576,  577;  Crowell  v. 
Gilmore,  13  Cal.  54,  57;  Tuttle  v.  Montford,  7  Cal.  358,  360  (1S55); 
Williams  v.  Mountaineer  G.  M.  Co.,  102  Cal.  134,  142,  34  Pac.  Rep.  702, 
36  Id.  388  (mining  claim);  Purser  v.  Cady  (Cal.,  June  17,  1897),  49  Pac. 
Rep.  180   (labor). 

Relation,  valid  or  void  contract:    See  §  489,  ante. 

Colorado.  Keystone  M.  Co.  v.  Gallagher,  5  Colo.  23  (1872);  Small 
V.  Foley,  8  Colo.  App.  435,  445,  47  Pac.  Rep.  64  (1889);  Tritch  v. 
Norton,   10  Colo.  337,   15  Pac.  Rep.  680    (1881). 

The  contractor  must  inform  himself  of  prior  liens;  the  rule  of 
caveat  emptor  applies:  See  Cornell  v.  Dunbar  Lumber  Co.,  9  Colo.  App. 
225,  47  Pac.  Rep.  912;  Schradsky  v.  Dunklee,  9  Colo.  App.  394,  48  Pac. 
Rep.    666. 

Failure  to  perfect  lien  also  relates  back:  Schradsky  v.  Dunklee, 
supra.  See  also  Orman  v.  Crystal  River  R.  Co.,  5  Colo.  App.  493,  498, 
39  Pac.  Rep.  434;  Chicago  L.  Co.  v.  Dillon,  13  Colo.  App.  196,  56  Pac. 
Rep.   989. 

Hawaii.  Contra:  Lucas  v.  Redward,  9  Hawn.  23,  25  (under  Sess. 
Laws  1888). 

Idaho.  Pacific  States  S.  L.  &  B.  Co.  v.  Dubois,  11  Idaho  319,  83  Pac. 
Rep.  513   (under  Sess.  Laws  1899,  p.  149,  §  11). 

Montana.  Murray  v.  Swanson,  18  Mont.  533,  46  Pac.  Rep.  441 
(1887);    Mason  v.  Germaine,   1  Mont.   263    (1879);    Merrigan  v.  English, 

9  Mont.  113,  22  Pac.  Rep.  454,  5  L.  R.  A.  837  (lien  held  to  relate  back 
to  commencement  of  work  by  the  original  contractor);  Mochon  v. 
Sullivan,  1  Mont.  472  (1865).  See  Davis  v.  Alvord,  94  U.  S.  545,  547,  bk. 
24  L.  ed.  283,  modifying  (see  note  21,  post,  this  chapter)  Davis  v.  Bils- 
land,  85  U.  S.  (18  Wall.)  659,  bk.  21  L.  ed  969;  Alvord  v.  Hendrie,  2 
Mont.    115. 

Nevada.     See  Sabin  v.  Connor,  21  Fed.  Cas.,  p.  124. 

Orej^on.  Tatum  v.  Cherry,  12  Oreg.  135,  6  Pac.  Rep.  715  (1874);  In 
re  Coulter,  2  Sawy.  C.  C.  42,  6  Fed.  Cas.,  p.  637;  Kendall  v.  McFarland, 
4  Oreg.  293. 

Statute  must  be  strictly  complied  with,  to  secure  such  precedence: 
Kendall  v.  McFarland,  supra.  See  Willamette  Falls  Co.  v.  Riley,  1 
Oreg.  183,  187. 

The  lien  attaches  when  the  materials  are  first  placed  on  the  prem- 
ises, or  when  the  work  is  begun,  and  remains  inclioate  until  the  claim 
is  filed,  under  Hill's  Ann.  Stats.,  §  3671  (Bellinger  and  Cotton's  Ann. 
Codes  and  Stats.,  §  5644),  when  it  becomes  effective,  and  relates  back 
to  the  commencement  of  tlie  structure:  Henry  v.  Hand,  36  Oreg.  492, 
59  Pac.  Rep.  330.  See  Inman  v.  Henderson,  29  Oreg.  116,  45  Pac.  Rep. 
300. 

Utah.  Fields  v.  Daisy  G.  M.  Co.,  25  Utah  76,  69  Pac.  Rep.  528;  Mor- 
rison V.  Inter-Mt.  S.  Co.,  14  Utah  201,  46  Pac.  Rep.  1104;  Morrison  v. 
Carey-Lombard   Co.,    9   Utah    70,    33    Pac.    Rep.    238;     Spargo   v.    Nelson, 

10  Utah  274.  37  Pac.  Rep.  495;  Carey-Lombard  L.  Co.  v.  Partridge,  10 
Utah  322,  37  Pac.  Rep.  572. 

No  lien  can  attacli  until  claimant  flies  statement  of  liis  intention 
to  do  work  and  furnish  materials  (§  12),  or  begins  to  work  or  furnish 
materials:  Morrison  v.  Carey-Lombard  Co.,  supra;  Garland  v.  Bear 
Lake  &  R.  W.  Irr.  Co.,  9  Utah  350,  34  Pac.  Rep.  368;  Teahen  v.  Nelson, 


§  491  mechanics'  liens.  '     452 

the  drifts  and  mine  the  quartz  and  substances  of  the  mine, 
entitles  laborers  to  a  mechanic's  lien,  under  section  eleven 
hundred  and  eighty-three  of  the  Code  of  Civil  Procedure ; 
and  upon  filing  the  lien  the  right  relates  back  to  the  time 
when  the  labor  was  performed. ^'■^ 

The  distinction  between  the  time  at  which  the  lien  at- 
taches, and  the  time  to  which  it  relates  after  it  has  once 
attached,  must  be  drawn ;  for  instance,  no  "  lien  "  attaches  to 
the  property  until  the  claim  has  been  filed  for  record,  as  it  is 
inchoate ;  ^°  but  after  such  filing  the  "  lien  "  relates  back  to 
the  time  when  the  work  was  done  or  materials  were  com- 
menced to  be  furnished,  etc.  Some  confusion  exists  in  the 
decisions  because  of  a  failure  clearly  to  observe  this  distinc- 
tion. Notwithstanding  the  broad  language  of  this  section,  it 
is  not  probable  that  the  lien  of  the  owner's  laborer  or 
material-man,  who  begins  work  or  furnishes  material  after 
the  building  has  been  commenced,  and  after  a  mortgage  has 
been  given  upon  the  property,  would  have  priority  over  the 
mortgage ;  ^^  and  the  expression,  "  building  or  structure  was 

6  Utah  363,  23  Pac.  Rep.  764.  See  Sierra  Nevada  L.  Co.  v.  Whitmore, 
24  Utah  130,  66  Pac.  Rep.  779,  781;  Culmer  v.  Caine,  22  Utah  216,  61 
Pac.  Rep.  1008,  1010. 

AVashing'ton.  Nason  v.  Northwestern  M.  &  P.  Co.,  17  Wash.  142,  49 
Pac.  Rep.  235,  in  which  it  was  held  that  the  lien  related  back  to  the 
time  of  beginning  the  labor  so  as  to  take  precedence  of  a  lis  pendens 
filed  before  filing  the  claim  of  lien  (Laws  1893,  p.  33,  §4;  Ballinger's 
Ann.  Codes  and  Stats.,  §5903);  Huttig  Bros.  Mfg.  Co.  v.  Denny  Hotel 
Co.,  6  Wash.  122,  129,  34  Pac.  Rep.  774;  Keene  G.  S.  Bank  v.  Law- 
rence, 32  W'ash.  572,  73  Pac.  Rep.  680.  In  the  last  case,  even  though  the 
materials  were  contracted  for  before  the  execution  of  the  mortgage, 
but  were  delivered  afterwards,  the  court  said  that  "  the  date  of  the 
actual  furnishing  of  the  material  governs  the  inception  of  the  lien." 

Wyoming.  See  Big  Horn  L.  Co.  v.  Davis,  14  Wyo.  455,  84  Pac.  Rep. 
900,  .905,   85  Id.   1048. 

"  Chappius  V.  Blankman,   128  Cal.  362,   365,   60  Pac.  Rep.  925. 

»>  See  §  19,  ante. 

"  See  Crowell  v.  Gilmore,  18  Cal.  370,  372  (1856);  Barber  v.  Rey- 
nolds, 44  Cal.  519,  533  (1862);  Davies-Henderson  L.  Co.  v.  Gottschalk, 
81  Cal.   641,   648,   22  Pac.  Rep.   860. 

See  further,   §§  495  et  seq.,  post. 

Montana.  Contra:  Davis  v.  Bilsland,  85  U.  S.  (18  Wall.)  659,  bk. 
21  L.  ed.   969,   three  justices  dissenting  —  construing  an  early   statute. 

AVasliingrton.  Huttig  Bros.  Mfg.  Co.  v.  Denny  Hotel  Co.,  6  Wash. 
122,  32  Pac.  Rep.  1073  (Gen.  Stats.,  §1666);  Home  S.  &  L.  Assoc,  v. 
Burton,  20  Wash.  688,  56  Pac.  Rep.  940  (Hill's  Ann.  Codes  and  Stats., 
§1960).  "Each  lien,  under  our  statute,  must  stand  upon  its  own 
footing." 


453  PRIORITIES   OF    LIENS.  §  492 

commenced,"  probably  has  reference  to  the  lien  of  the  origi- 
nal contractor  only.-- 

§  492.  Same.  Lien  for  materials.  In  the  case  of  a  ma- 
terial-man, the  material  is  "  furnished,"  and  the  lien  relates 
back  to  the  time  when  he  has  such  materials  as  he  has  con- 
tracted to  furnish,  ready  for  delivery  at  the  place  where  he 
agreed  to  deliver  them ;  ^^  and  it  is  not  necessary  to  deliver 
the  materials  at  the  building,  in  order  that  he  may  be  consid- 
ered to  have  "  furnished  "  them,  within  the  meaning  of  the 
statute.^*  The  lien  for  materials,  thus  relating  back  to  the 
commencement  of  furnishing  them,  has  priority  over  a  mort- 
gage subsequently  executed.^^ 

~  See  Barber  v.  Reynolds,   44  Cal.   519,   533    (1862). 

Washington.  See  Huttig  Bros.  Mfg.  Co.  v.  Denny  Hotel  Co.,  6 
Wash.   122,   128,   32  Pac.   Rep.   1073. 

='  Tibbetts  v.  Moore,  23  Cal.  208,  214. 

In  Bennett  v.  Beadle,  142  Cal.  239,  243,  75  Pac.  Rep.  843,  it  was  said 
of  Tibbetts  v.  Moore,  supra:  "Without  questioning  the  correctness 
of  that  decision  as  to  the  particular  matter  there  involved,  it  will 
be  observed  that  the  word  '  furnished,'  there  construed,  was  used  in 
relation  to  a  different  subject-matter  from  that  here  under  discussion 
[lien  upon  a  vessel],  namely,  the  question  of  priority  of  liens,  which 
is  now  embraced  in  §  1186  of  the  Code  of  Civil  Procedure,  whereby  a 
material-man's  lien  is  preferred  to  liens  attaching  subsequent  to  tlie 
time   when   the   materials   'are  commenced   to   be   furnished.'" 

M<»ntnna.  McEwen  v.  Montana  P.  &  P.  Co.,  90  Pac.  Rep.  359.  See 
Clark   v.  Lindsay,  19  Mont.  1,   47  Pac.  Rep.   102;    61  Am.  St.  Rep.  479. 

AVaiiliington.  Huttig  Bros.  Mfg.  Co.  V.  Denny  Hotel  Co.,  6  Wash. 
122,    130.   32   Pac.   Rep.    1073. 

-'  Tibbetts  v.  Moore,   23  Cal.   208,   214. 

See  §  88,  ante. 

="  Pacific  Mut.  L.  L  Co.  v.  Fisher,  106  Cal.  224,  236,  39  Pac.  Rep. 
758:  Germania  B.  &  L.  Assoc,  v.  Wagner,  61  Cal.  349,  354;  Schwartz 
v.  Knight,  74  Cal.  432,  434,  16  Pac.  Rep.  235  (although  building  left 
uncompleted).  See  Davies-Henderson  L.  Co.  v.  Gottschalk,  81  Cal. 
641,  648,  22  Pac.  Rep.  860  (whether  contract  made  directly  with 
owner  or  his  contractor);  McClain  v.  Knight,  131  Cal.  132,  143,  61 
Pac.  Rep.  273,  63  Id.  623.  See  also  Maher  v.  Shull,  11  Colo.  App.  322, 
327,   52   Pac.   Rep.   1115. 

See  §  495,  post. 

Colo-  do.  Or  subsequent  alienations:  Mellor  v.  Valentine,  3  Colo. 
255:    Keystone  M.  Co.   v.  Gallagher,   5   Colo.   512    (1872). 

Where  the  ^vork  done  or  inaterinlM  furnished  In  continuou!>i  in  its 
nature,  the  contract  must  be  regarded  as  an  entirety,  and  the  lien 
attaches  for  work  done  and  materials  furnished  after  as  well  as 
before  the  pvirchase:  Id. 

As  to  runnin;:;  aeeoiint.  Time  bejKins  to  run  against  mcclianic'a 
lien  ^vlien:  7  Am.  &  Eng.   Ann.  Cas.   947. 

Oregon.  Inman  v.  Henderson.  29  Greg.  116,  45  Pac.  Rep.  300; 
HarrisbTirg  L.  Co.  v.  Washburn,  29  Oreg.  150,  170,  44  Pac.  Rep.  390; 
Kendall   v.  McFarland,   4   Oreg.   293. 


§  493  mechanics'  liexs.  454 

§  493.  Same.  Contractors  and  subcontractors.  Void  con- 
tract. Homestead.  In  eonneetiun  with  the  subject  of  rela- 
tion, Mr.  Justice  Works,  speaking  for  the  court,  said :  "  In 
some  of  the  earlier  cases  a  distinction  was  made,  in  this  re- 
spect, betw^een  contractors  with  the  owner  and  subcon- 
tractors. As  to  the  former,  it  was  held  that  their  liens 
attached  at  the  commencement  of  the  work,  and  as  to  the 
latter,  that  their  liens  were  in  the  nature  of  attachments,  and 
attached  at  the  time  notice  was  given  to  the  owner. ^"^  But 
this  distinction  does  not  exist  under  the  present  statute, 
where  the  original  contract  is  void.  In  such  case  the  con- 
tract is,  by  the  terms  of  the  statute,  deemed  to  be  the 
contract  of  the  owner,  and  the  lien  must  be  held  to  attach 
as  in  case  of  such  a  direct  contract.  Any  other  con- 
struction would  relieve  the  owner  from  any  liability,  under 
the  circumstances  of  this  case.  He  could  get  his  house 
completed,  declare  his  homestead,  and  say  to  the  original 
contractor,  *  Your  contract  is  void,  and  I  am  not  personally 
liable  to  you  [on  the  express  contract],  nor  is  my  property 
liable  to  any  lien  in  your  favor  ' ;  and  to  the  material-man  he 
could  say,  '  After  getting  the  full  benefit  of  your  material, 
and  just  before  you  could  file  your  lien  under  the  statute,  I 
filed  my  declaration  of  homestead ;  and  your  lien  comes  too 
late.'  We  do  not  wish  to  be  understood  as  agreeing  to  the 
doctrine  declared  in  the  early  decision  cited,  that  the  lien  of 
a  material-man  did  not  attach  at  the  time  of  furnishing  the 
material,  even  under  the  former  statute ;  ^^  but,  conceding  it 
to  have  been  so  under  the  then  existing  statute,  it  is  clearly 
not  so  now,  where  the  contract  is  void  for  any  of  the  reasons 
stated  in  the  statute."  ^^ 

Utah.  But  when  a  person,  who  has  a  lien  against  property,  for 
the  purpose  of  inducim?  another  person  to  loan  money  on  the  same 
property  as  security,  releases  such  right,  such  party,  after  such 
person  has  so  loaned  the  money  on  the  faith  of  such  security,  will 
not  be  heard  to  reassert  his  right  of  lien  as  against  the  person  who  so 
parted  with  his  money:  Spargo  v.  Nelson,  10  Utah  274,  37  Pac.  Rep. 
495. 

»"  Citing  Cahoon  v.  Levy,  6  Cal.  295,  297,  65  Am.  Dec.  515. 

="  Citing  Germania  Bldg.  &  L.  Assoc,  v.  Wagner,   61  Cal.   349.   350. 

^  Davies-Hendersoh  L.  Co.  v.  Gottschalk,  81  Cal.  641,  648,  22  Pac. 
Rep.   860    (McParland,   J.,   dissenting!). 

In  Barber  v.  Reynolds,  44  Cal.  519.  533  (1862),  Wallace,  C.  J.,  deliv- 
ering the   opinion   of   the   court,    said:    "There   being  no   written    con- 


II 


455  PRIORITIES  OF   LIENS.  §§  494, 495 

A  declaration  of  homestead  does  not  now  defeat  a  right 
to  a  lien  which  has  already  attached,  although  the  claim  of 
lien  has  not  yet  been  filed. -^ 

§  494.  Same.  Parts  of  day.  In  conformity  with  the 
rules  stated'  in  the  sections  immediately  preceding,  the  court 
will  take  notice  of  the  parts  of  a  day,  or  the  exact  time  when 
the  instrument  was  filed  for  record,  thus  giving  a  lien  for 
work  commenced  two  hours  before  a  mortgage  was  filed  for 
record  priority  over  the  mortgage  or  other  encumbrance.^" 

§  495.  Same.  General  rule.  From  a  consideration  of 
the  statute  and  rules  suggested  in  the  sections  immediately 
preceding,  the  general  rule  may  be  stated  as  follows :    The 

tiact  for  the  construction  of  the  building,  and  the  several  liens  of 
the  plaintiffs  arising  under  the  seventeenth  section  of  the  act,  these 
liens  did  not  relate  back  to  the  commencement  of  the  work,  July  30, 
1866;  but  each  lien  related  to  the  commencement  of  the  particular 
labor  or  the  furnishing  of  the  particular  materials  for  which  the 
claim  was  made  in  the  account  filed  in  the  recorder's  office.  This  is 
the  rule  of  priority  which  we  think  the  statute  contemplated  in 
reference  to  liens  of  the  character  of  those  with  which  we  are  now 
dealing.  We  think  that  the  phrase,  'which  lien  shall  relate  to  the  time 
pf  the  commencement  of  the  work,'  occurring  in  the  seventeenth  sec- 
tion, has  reference,  not  to  the  commencement  of  the  general  construc- 
tion of  the  building,  but  to  the  commencement  of  the  particular  work 
of  [or]  furnishing  materials  in  virtue  of  which  a  particular  person 
claims  a  lien.  Upon  any  other  construction  it  must  follow  that  a  lien 
sufficient  and  affording  ample  security  at  the  time  a  particular  piece 
of  work  was  commenced  or  materials  furnished  might  become  practi- 
cally lost  or  dissipated  by  the  subsequent  recklessness  or  extrava- 
gance of  tlie  proprietor  of  the  building,  involving,  it  might  be,  liens 
of  such  magnitude  in  aggregate  amount  as  to  leave  comparatively 
nothing  to  satisfy  the  laborer  or  material-man,  whose  lien  was 
perhaps  the  earliest  in  point  of  time."  Section  17  of  this  act 
expressly  provided  that  when  a  person  shall  proceed  to  construct, 
repair,  or  cause  to  be  constructed  or  repaired,  any  building,  etc., 
without  making  a  contract,  in  writing,  for  such  construction,  etc., 
every  person  who  shall  perform  labor,  etc.,  shall  have  a  lien  to  the 
full  extent  of  all  labor  performed,  etc.,  upon  the  interest  of  the 
person  causing  tlie  same  to  be  constructed  or  repaired,  etc.,  "  which 
lien  shall  relate  to  the  time  of  the  commencement  of  the  work." 
See   §  468,   ante. 

=*  Davies-Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641,  649,  22  Pac 
Rep.   860. 

See  Kerr'M  Cyc.  Civ.  Code,  §  1241,  and  note. 
See  also  §§  37,   468,  ante. 

^  Preston  v.  Sonora  Lodge,   39  Cal.   116,   119    (1868). 
See  note  61  Am.  Dec.   700. 

Fractions  of  a  day  considered  when:  See  Kerr's  Cye.  Code  Civ. 
Proc,  §  12,  note  pars.  9-12. 


§  495  mechanics'  liens.  456 

liens  of  mortgages,^^  deeds  of  trust,^-  judgments,^^  and  other 
encumbrances,^*  created  subsequently  to  the  time  when  the 

"  Ah  Louis  V.  Harwood,  140  CaL  500,  505,  74  Pac.  Rep.  41;  Hamil- 
ton V.  Dellii  M.  Co.,  118  Cal.  148,  152,  50  Pac.  Rep.  378;  Avery  v. 
Clark,  87  Cal.  613,  627,  25  Pac.  Rep.  919,  22  Am.  St.  Rep.  272;  Bewick 
V.  Muir,  83  Cal.  368,  371,  23  Pac.  Rep.  389;  Harmon  v.  Ashmead,  68 
Cal.   321,  323,   9  Pac.  Rep.   183;    Crowell  v.  Gilmore,   13  Cal.   54,   56. 

MHiere  the  work  done  or  materials  furnished  by  subclaimants 
under  a  void  statutory  original  contract  was  commenced  prior  to  the 
date  of  a  mortgage  upon  the  premises,  the  mortgage  is  subsequent  to 
the  liens:  McClain  v.  Hutton,  131  Cal.  132,  133,  135,  144,  61  Pac.  Rep. 
273,    63   Id.   182,   622. 

See  §§  486  et  seq.,  ante. 

Montana.  And  the  mortgagee,  by  purchasing  under  foreclosure  of 
his  mortgage,  succeeds  only  to  the  rights  of  the  mortgager,  and  is 
not  a  bona  fide  purchaser  witliout  notice  of  the  mechanics'  liens: 
Western  I.  W.  v.  Montana  P.  &  P.  Co.,  30  Mont.  550,  77  Pac.  Rep  413, 
417    (under  Code   Civ.   Proc,    §  2133). 

Nevada.     Capron  v.  Strout,  11  Nev.   313. 

Oregon.  A  mortgage  prior  in  time  takes  precedence  over  the  lien 
of  claimants  as  to  the  land  on  which  the  structure  is  erected,  but  it  is 
otherwise  as  to  the  building:  Cooper  Mfg.  Co.  v.  Delahunt,  3'6  Oreg. 
402,  408,  60  Pac.  Rep.  1;  Smith  v.  Wilkins,  38  Oreg.  583,  585,  64  Pac. 
Rep.  760. 

But  where,  after  the  right  to  a  mechanic's  lien  has  attached,  but 
before  the  claim  of  lien  is  filed,  a  prior  mortgage  is  renewed,  the 
renewed  mortgage  is  prior  to  the  lien,  the  mortgagee  being  ignorant 
of  the  intervening  liens  or  rights  to  liens:  Title  G.  &  T.  Co.  v.  Wrenn, 
35  Oreg.  62,  56  Pac.  Rep.  271,  76  Am.  St.  Rep.  454;  Capital  L.  Co.  v. 
Ryan,  34  Oreg.  73,  54  Pac.  Rep.  1093.  For  the  mere  fact  that  a  former 
mortgage  was  released,  and  a  new  one  taken  in  place  thereof,  in 
Ignorance  of  the  existence  of  an  intervening  lien,  is,  in  equity,  deemed 
such  a  mistake  of  fact  as  will  entitle  the  plaintiff  to  relief,  although 
such  lien  is  a  matter  of  record,  and,  a  fortiori,  where  the  intervening 
right  is  merely  inchoate,  such  lien  or  right  not  being  interfered 
with:    Capital  L.  Co.  v.  Ryan,  supra. 

AVashington.  As  to  extra  work,  see  Powell  v.  Nolan,  27  Wash.  318, 
67  Pac.  Rep.   712,   719. 

^^  See  Southern  Cal.  L.  Co.  v.  Peters,  3  Cal.  App.  478,  86  Pac.  Rep. 
816;    Goss  v.  Helbing,  77  Cal.  190,  191,  19  Pac.  Rep.  277. 

Colorado.  Cornell  v.  Dunbar  L.  Co.,  9  Colo.  App.  225,  47  Pac.  Rep. 
912.  But  see  Seely  v.  Neill   (Colo.),   86  Pac.  Rep.   334. 

Utah.     Fields  v.  Daisy  G.  M.  Co.,   25  Utah   76,   69  Pac.  Rep.   528. 

AVliere  deed  of  trust  is  given  o£  eanal  or  ditch  on  public  lands, 
which  was  not  constructed,  it  could  not  transfer  the  canal  to  tlie 
trustee  until  it  was  constructed,  and  where  claimants  are  employed 
to  construct  the  same,  their  liens  take  priority  over  such  deed  of 
trust:  Garland  v.  Bear  Lake  &  R.  W.  &  Irr.  Co.,  9  Utah  350,  363,  34 
Pac.  Rep.  368;  affirmed  in  Bear  Lake  Irr.  Co.  v.  Garland,  164  U.  S.  1, 
bk.   41  L.  ed.  327,   17  Sup.  Ct.  Rep.   7. 

33  Hamilton  v.  Delhi  M.  Co.,  118  Cal.  148,  152,  50  Pac.  Rep.  378.  This 
is  the  rule,  even  though  the  labor  is  completed  and  the  last  of  the 
materials  delivered  after  the  judgment  is  docketed:  Barber  v.  Rey- 
nolds, 44  Cal.   519,  534.     See  Flandreau  v.  Downey,   23  Cal.  354. 

Colorado.  Empire  L.  &  C.  Co.  v.  Engley,  18  Colo.  388,  33  Pac.  Rep. 
153    (lis    pendens). 

3*  Utah.  Sanford  v.  Kunkel,  85  Pac.  Rep.  363,  365,  1012  (under  Rev. 
Stats.    1898,   §  1384). 


457  PRIORITIES   OF   LIENS.  §  495 

lieu  attaches,  or  subsequently  to  the  time  to  Avhich  the  lien 
relates,  are  subordinate  to  the  liens  of  claimants  for  work  or 
materials  ;^^  but  the  liens  of  mortgages,^**  deeds  of  trust,^^ 

^  Priority  of  mechauics'  liens  over  subsequent  Hens:  See  note  12 
L.   R.   A.    33. 

Colorado.  .Tritch  v.  Norton,  10  Colo.  337,  15  Pac.  Rep.  680  (1881).  See 
Williams  v.  Uncompahgre  C.  Co.,  13  Colo.  469,  22  Pac.  Rep.  806;  and 
Jarvis  v.  State  Bank,  22  Colo.  309,  45  Pac.  Rep.  505,  55  Am.  St.  Rep.  129. 

Wasliington.  Baker  v.  Sinclaire,  22  Wash.  462,  61  Pac.  Rep.  170, 
and  cases  cited  in  the  opinion  (under  Ballinger's  Ann.  Codes  and 
Stats.,    §  5903). 

^«  Middleton  v.  Arastraville  M.  Co.,  146  Cal.  219,  225,  79  Pac.  Rep. 
889;  McClain  v.  Hutton,  131  Cal.  132,  61  Pac.  Rep.  273,  63  Id.  182,  622; 
Williams  v.  Santa  Clara  M.  Assoc,  66  Cal.  193,  199,  5  Pac.  Rep.  85,  4 
W'est  Coast  Rep.  616;  Kuschel  v.  Hunter  (Cal.),  50  Pac.  Rep.  397; 
Warren  v.  Hopkins  (Cal.,  Sept.  14,  1897),  110  Cal.  506,  42  Pac.  Rep.  986 
(grading-,  under  Code  Civ.  Proc,  §1192);  Tapia  v.  Demartini,  77  Cal. 
383,  386,  19  Pac.  Rep.  641,  3  1  Am.  St.  Rep.  288;  Preston  v.  Sonora  Lodge, 
39  Cal.  116,  117  (1868);  Ferguson  v.  Miller,  6  Cal.  403,  405  (1850); 
Crowell  V.  Gilmore,  18  Cal.  370,  372   (1856). 

See  §§  486   et  seq.,  ante. 

Mechanics'  liens,  wlien  superior  to  earlier  mortgages:  See  note  14 
L.  R.  A.   305. 

Fact  tliat  tlie  niortgagee  was  the  secretary  of  a  mining  corpora- 
tion during  the  time  of  the  performance  of  the  labor,  subsequent  to 
the  record  of  the  mortgage,  and  that  such  labor  was  performed  with 
his  knowledge,  or  even  at  his  request,  does  not  estop  the  mortgagee, 
nor  have  the  effect  of  postponing  the  lien  of  his  mortgage  to  laborers' 
liens:  Middleton  v.  Arastraville  M.  Co.,  146  Cal.  219,  225,  79  Pac.  Rep. 
889. 

Colorado.     Folsom  v.   Cragen,   11   Colo.   205,   17  Pac.   Rep.   515    (1883). 

The  rule  that  a  nieclianic's  lien  attaches  to  a  huflding  in  preference 
to  a  prior  mortgage  on  the  land  does  not  apply  where  the  material- 
man has  notice  that  the  mortgage  expressly  mentions  the  structure, 
and  the  funds  for  which  it  was  given  were  used  in  the  construction 
thereof:    Joralmon  v.  McPhee,  31  Colo.   26,   34,   71  Pac.  Rep.  419,   422. 

Idaho.  Pacific  States  S.  L.  &  Bldg.  Co.  v.  Dubois,  11  Idaho  319,  83 
Pac.  Rep.  513.  See  Rourke  v.  Bergevin,  4  Idaho  742,  44  Pac.  Rep.  645 
(chattel   mortgage:    lien   on   crops). 

Montana.     See  Davis  v.  Alvord,  94  U.  S.  545,  bk.  24  L.  ed.  283. 

Nevada.     Capron  v.  Strout,   ]1  Nev.  304. 

Utah,  See  Garland  v.  Bear  Lake  &  R.  W^.  &  Irr.  Co.,  9  Utah  350, 
362,  34  Pac.  Rep.  368,  s.  c.  164  U.  S.  1,  bk.  41  L.  ed.  327,  17  Sup.  Ct! 
Rep.   7. 

Washington.  Huttig  Bros.  Mfg.  Co.  v.  Denny  Hotel  Co.,  6  Wash. 
122,  129,  130,  32  Pac.  Rep.  1073,  in  which  it  was  also  held  that  the 
fact  that  a  mortgage  given  in  view  of  a  contemplated  building  con- 
tained a  provision  allowing  the  mortgagee  to  pay  off  any  liens  that 
iright  be  created  against  the  property  from  the  amount  of  the  mort- 
gage loan  does  not  estop  the  mortgagee  from  disputing  tlie  claims  of 
the  lienors,  and  no  liability  for  such  liens  was  assumed  by  the 
mortgagee.  See  Fitch  v.  Applegate,  24  Wash.  25,  31,  64  Pac.  Rep.  147 
(under  Laws  1897,  p.  55,  §  1). 

•■"  Williams  v.  Santa  Clara  M.  Assoc,  66  Cal.  193.  200.  5  Pac.  Rep.  85, 
4  West  Coast  Rep.  616;  Valley  L.  Co.  v.  Wright,  2  Cal.  App.  288,  29oi 
84  Pac.  Rep.  58,  even  tliough  the  advances  were  actually  made  after 


§  496  mechanics'  liexs.  458 

and  encumbrances  -which  -were  recorded  at  the  time  "  the 
building,  improvement,  or  structure  was  commenced,  work 
done,  or  the  materials  were  commenced  to  be  furnished," 
dating  from  the  time  the  lien  "  attached,"  or  to  which  it 
"  relates,"  or  of  which  the  lien-holder  had  notice, ^^  take  pre- 
cedence over  such  liens  for  labor  or  materials. ^^ 

§  496.  Same.  Mortgage  for  purchase  price.  The  stat- 
ute ^**  providing  that  "  a  mortgage  given  for  the  price  of  real 
property,  at  the  time  of  its  conveyance,  has  priority  over  all 
other  liens  created  against  the  purchaser,  subject  to  the  oper- 
ation of  the  recording  laws,"  does  not  generally  give  to  the 
mortgagee  priority  for  the  lien  of  his  mortgage  over  me- 
chanics' liens  created  by  the  vendee  of  the  premises  prior  to 
the  execution  of  the  deed  therefor.     The  latter  liens  have 

the  recording-  of  the  deed  of  trust  and  after  the  labor  and  materials 
were  commenced  to  be  furnished,  or  the  lien  attached:  Id.  See  Weber 
V.  McCleverty,  149  Cal.  316,  322,  323,  86  Pac.  Rep.  706;  Kuschel  v. 
Hunter   (Cal.,  Sept.  14,   1897),  50  Pac.  Rep.   397. 

Oregon.  But  see  Harrisburg  L.  Co.  v.  Washburn,  29  Oreg.  150,  44 
Pac.  Rep.   390;  and  see  notes  §§  459  et  seq.,  ante. 

Utah.  See  Garland  v.  Bear  Lake  &  R.  W.  &  Irr.  Co.,  9  Utah  350, 
362,   34  Pac.  Rep.   368. 

3s  Root  V.  Bryant,  57  Cal.  48,  49,  1  Pac.  Coast  L.  J.  43;  Soule  v. 
Dawes,  7  Cal.  575,  577.     See  Montrose  v.  Conner,   8  Cal.  344,   347. 

Oregon.  With  reference  to  notice  served  on  railroad  company 
under  Laws  1889,  p.  75,  see  Coleman  v.  Oregonian  R.  Co.,  25  Oreg.  286, 
35  Pac.  Rep.  656. 

Washington.  See  Potvin  v.  Denny  Hotel  Co.,  37  Wash.  323,  79  Pac. 
Rep.  940. 

^  Mortgage  lien  attaches  ^vhen  instrument  executed:  Root  v.  Bry- 
ant, supra;  Bank  of  Ukiah  v.  Petaluma  Savings  Bank,  100  Cal.  590,  35 
Pac.  Rep.  170.  See  Crowell  v.  Gilmore,  13  Cal.  56;  Union  'W.  Co.  v. 
Murphy's  Flat  F.  Co.,  22  Cal.  620,  631;  McCrea  v.  Craig,  23  Cal.  522, 
525. 

Alabama.     W^elch  v.   Porter,   63  Ala.   232. 

Federal.     In  re  Coulter,  2  Sawy.  C.  C.  42,  49,  6  Fed.  Cas.,  p.  637. 

Montana.  See  Johnson  v.  Puritan  M.  Co.,  19  Mont.  30,  47  Pac.  Rep. 
337.     See  Missoula  M.  Co.  v.  O'Donnell,  24  Mont.  65,  60  Pac.  Rep.  991. 

Nevada.     Capron    v.    Strout,    11    Nev.    304,    313. 

North  Dakota.  Haxtun  S.  H.  Co.  v.  Gordon,  2  N.  D.  246,  251,  50  N.  W. 
Rep.  708,  33  Am.  St.  Rep.  779. 

Utah.  See  Morrison  v.  Carey-Lombard  Co.,  9  Utah  70,  33  Pac.  Rep. 
238  (1890);  Teahen  v.  Nelson,  6  Utah  363,  23  Pac.  Rep.  764  (before 
1890). 

AVashington.  So  of  a  bond  to  give  a  deed,  which  in  equity  creates 
the  same  relation  as  that  existing  between  a  mortgager  and  a  mort- 
gagee: St.  Paul  &  T.  L.  Co.  V.  Bolton,. 5  Wash.  763.  766,  32  Pac.  Rep. 
787.    See  Baker  v.  Sinclaire,  22  Wash.  462,  61  Pac.  Rep.   170. 

"  Kerr's  Cyc.  Civ.  Code,  §  2898. 


459  PRIORITIES   OF    LIENS  §  497 

priority  over  the  former,  under  section  eleven  hundred  and 
eighty-six.*^ 

§  497.  Same.  Mortgage  for  future  advances.  After  a 
mortgage  for  future  advances,  whetlier  in  money  or  ma- 
terials, is  recorded,  it  takes  precedence,  as  against  subse- 
quent purchasers  or  encumbrancers  and  lien  claimants,  but 
the  lien  of  the  mortgagee  cannot  be  enforced  as  against  sub- 
sequent encumbrances,  of  which  the  mortgagee  has  actual 
notice,  for  advancements  made  after  such  notice ;  constructive 
notice,  by  the  recording  of  such  encumbrances,  is  not  enough. 
The  mortgage  may  be  valid  even  if  it  does  not  disclose  upon 
its  face  that  it  is  given  in  part  for  future  advances,  if  the 
amount  of  liability  to  be  incurred  under  it  is  expressly  lim- 
ited, and  the  agreement  under  which  the  advances  are  to  be 
made  need  not  be  in  writing.  If  the  mortgage  discloses  upon 
its  face  that  it  is  to  stand  as  security  for  future  advance- 
ments, the  amount  of  the  advances  to  be  made  need  not 
be  set  out,  and  if  the  mortgage  is  sufficiently  definite 
to  put  subsequent  encumbrancers  on  inquiry,  they  must 
ascertain  the  extent  of  the  mortgagee's  lien  or  suffer  the 
consequences.*^ 

"  Kerr's  Cye.  Code  Civ.  Proc.,  §  1186;  Avery  v.  Clark,  87  Cal.  619,  627, 
25  Pac.  Rep.  919,  22  Am.  St.  Rep.  272.  Contra:  Guy  v.  Carriere,  5  Cal. 
511,   515    (1850). 

But  see  McClaln  v.  Hutton.   131  Cal.   132,   61   Pac.   Rep.   273. 

See  note  51  Am.  St.  Rep.  932. 

Colorado.  See  Maher  v.  Shull,  11  Colo.  App.  322,  327,  52  Pac.  Rep. 
1115. 

Oreg^on.  But  a  mortgage  for  the  purchase  price,  executed  con- 
currently with  the  deed,  is  not  postponed  to  liens  for  materials  fur- 
nished prior  thereto,  as  to  the  land,  but  is  so  postponed  as  to  the 
building:   Smith  v.  Wilkins,  38  Greg.   583,   585,   64   Pac.   Rep.   760. 

**  Tapia  V.  Demartini,  77  Cal.  383,  387,  19  Pac.  Rep.  641,  11  Am.  St. 
Rep.   288. 

Colorado.  Mortgage  given  for  future  advances  to  erect  a  building, 
which  was  duly  recorded,  of  wliich  claimants  had  notice,  takes  prece- 
dence of  mechanics'  liens  subsequently  attaching,  as  to  advances 
actually  made  for  the  building,  especially  where  the  claimants 
received  part  payment  from  the  mortgagee,  notwithstanding  Mills's 
Ann.  Stats.,  §2884:  Joralmon  v.  McPhee,  31  Colo.  26.  71  Pac.  Rep.  419, 
421. 

Washington.  Stetson-Post  M.  Co.  v.  Brown,  21  Wash.  619,  627,  59 
Pac.  Rep.  507,  75  Am.  St.  Rep.  862;  Home  S.  &  L.  Assoc,  v.  Burton,  20 
Wash.  688,  56  Pac.  Rep.  940,  citing  the  California  case  given  above  in 
this  note. 


§§498-500  mechanics'  liens.  460 

§  498.  Same.  What  constitutes  "  further  advances."  A 
payment  made  by  a  mortgagee  on  behalf  of  the  mortgager 
constitutes  an  advancement  contemplated  by  a  clause  of  the 
mortgage  securing  such  future  advancements  by  the  mort- 
gagee, only  when  the  payment  involves  a  contract  relation, 
express  or  implied,  and  where  no  such  relation  is  shown,  a 
payment,  under  the  terms  of  the  mortgage,  made  without  the 
mortgager's  knowledge  or  consent,  is  not  such  a  further 
idvanee.*^ 

§  499.     Same.     Reformation  and  alteration  of  instruments. 

Where  the  parties  to  a  lease  have  failed  to  express  their  real 
intentions,  it  may  be  reformed  as  between  themselves,  but 
not  so  as  to  prejudice  the  rights  of  the  holders  of  mechanics' 
liens  acquired  without  notice,  in  good  faith  and  for  value. 
The  written  lease  supersedes  all  oral  negotiations  or  stipula- 
tions concerning  the  removal  of  improvements,  which  pre- 
ceded or  accompanied  the  execution  of  the  instrument,  when 
it  is  not  so  reformed,  at  least,  in  the  action  to  foreclose  such 
liens.**  But  where  the  claimant  enters  into  a  contract 
with  the  owner,  and  a  third  party  takes  a  mortgage  upon  the 
property,  and  parts  with  value,  relying  upon  the  terms  of 
that  contract,  the  claimant  and  owner  cannot  change  the 
terms  of  the  contract  to  the  detriment  of  the  mortgagee,  and 
the  lien,  so  far  as  it  is  extended  by  the  change  of  the  agree- 
ment, will  not  take  priority  over  the  mortgage ;  *^  yet,  gen- 
erally speaking,  where  no  intervening  rights  are  affected,  no 
one  can  complain  of  such  change  by  the  parties  to  the  con- 
tract." 

§  500.  Same.  When  lien  claimants  may  attack  prior  en- 
cumbrances.    Where   the    mortgage   is   prior   to    the   liens, 

«  Provident  M.  B.  L.  Assoc,  v.  Shaffer,  2  Gal.  App.  216,  83  Pac.  Rep. 
274. 

Advances  must  be  properly  made:    See  4  Am.  &  Eng.  Ann.  Cas.  615. 

"  West  Coast  L.  Co.  v.  Apfield,  86  Cal.  335,  340,  24  Pac.  Rep.  993. 

Montana.  As  to  reformation  of  mortgage,  error  in  description,  see 
Grand  Opera  House  Co.  v.  Maguire,  14  Mont.  558,  37  Pac.  Rep.  607. 

*'  Soule   V.   Dawes,    7.  Cal.    575,    576. 

<"  Gamble  v.  Voll,   15  Cal.   508,   510. 

See  "Change  of  Contract,"  §§  326  et  seq.,  ante. 


461  PRIORITIES   OP   LIENS.  §  5C1 

claimants  can  attack  it  only  upon  the  ground  that  it  was 
made  to  hinder,  delay,  or  defraud  creditors ;  but  the  mere 
fact  that  it  was  without  consideration  is  not  equivalent  to 
this,  and  fraud  must  be  found  l)y  the  court,  in  order  that  the 
attack  may  be  successful.'*^ 

§  501.  Same.  Garnishment  by  creditor.  Whether  or  not 
a  garnishment  served  upon  the  owner  at  the  instance  of  a 
creditor  of  the  original  contractor  would  take  precedence  of 
the  liens  of  claimants  for  labor  or  materials,  does  not  seem 
to  have  been  clearly  decided  in  California.  Under  the  pres- 
ent statute  the  lien  upon  the  fund  in  the  hands  of  the  owner, 
created  by  service  of  notice  upon  him,  being  independent  of 
the  lien  upon  the  property,  resembles,  in  some  respects,  the 
garnishment  proceeding  under  the  act  of  1855."*^ 

«  Bewick  v.  Muir.   83  Cal.   308,   371.   23   Pac.  Rep.  389,   390. 

As  to  general  subject,  .see  note  31  Am.  St.  Rep.   665. 

■**  As  to  priority  of  lien  upon  the  fund,  created  by  .service  of  notice 
on  tlie  owner,  see  French  v.  Powell.   13.5  Cal.   636.   640,   68  Pac.  Rep.  92. 

Tlie  lien  of  a  subcontractor  tile«I  and  notice  given  to  tlie  owner  of 
the  building-  within  thirty  days  after  the  completion  of  the  work, 
under  the  act  of  1855,  attaclied  from  the  time  the  work  was  com- 
menced, and  took  precedence  over  a  garnishment  served  on  the  owner 
against  the  original  contractor  after  the  work  was  commenced  and 
before  the  filing  and  serving  of  the  notice  of  lien.  Wliether  the  pay- 
ment by  the  owner  to  the  original  contractor  before  the  notice  of  tlie 
lien  of  the  subcontractor  would  defeat  the  lien  pro  tanto,  qusere: 
Tuttle  v.  Montford,  7  Cal.  358,  360.     But  — 

In  Gaboon  v.  Levy,  6  Cal.  296,  297,  65  Am.  Dec.  515  (1850),  it  was 
held  that  a  garnishment  served  on  the  owner,  in  a  suit  against  the 
original  contractor,  after  the  commencement  of  the  building  and  before 
notice  served,  prevailed  over  the  lien  of  the  subcontractor:  See  Board 
of  Education  v.  Blake   (Cal.,  Dec.  3,  1894),   38  Pac.  Rep.  536. 

See  also  "  General  Creditors,"  §§  601  et  seq.,  post,  and  "  Notice," 
§§  547   et  seq.,   post. 

Colorado.  No  attachment  or  garnishment  of  any  money  due  a  con- 
tractor from  the  owner  is  valid  as  against  the  lien  of  the  subcon- 
tractor: Schradsky  v.  Dunklee,  9  Colo.  App.  394,  48  Pac.  Rep.  666 
(under  statute);  but  if  the  lien  is  not  perfected,  the  garnishment 
holds  good:   Id. 

New  Mexico.  Where  a  lis  pendens  was  filed  in  an  attachment  case, 
it  was  held  that  the  attachment  lien  took  precedence  over  a  lien  for 
labor  subsequently  performed:  Bell  v.  Gaylord,  6  N.  M.  227,  27  Pac. 
Rep.  494. 

Oregon.  Held  tliat  the  garnishment  of  the  owner  by  a  general 
creditor  of  the  contractor  takes  priority  over  subsequent  notice  to  the 
owner  served  by  a  subclaimant,  under  Laws  1889,  p.  75,  relating  to 
work  for  railroad  companies,  providing  for  liability  of  owner  only  to 
amount  due  contractor  at  the  time  of  service  of  notice:  Coleman  v. 
Oregonian  R.  Co.,  25  Oreg.  286,  35  Pac.  Rep.  656. 


§§  502, 503  mechanics'  liens.  462 

§  502.  Same.  Lien  on  two  or  more  buildings.  Statutory 
provision.  The  statute  *^  provides :  "  In  every  case  in  which 
one  claim  is  filed  against  two  or  more  buildings,  mining 
claims,  or  other  improvements  OAvned  by  the  same  person, 
the  person  filing  such  claim  must,  at  the  same  time,  designate 
the  amount  due  to  him  on  each  of  such  buildings,  mining 
claims,  or  other  improvements;  otherwise  the  lien  of  such 
claim  is  postponed  to  other  liens.  The  lien  of  such  claimant 
does  not  extend  beyond  the  amount  designated,  as  against 
other  creditors  having  liens,  by  judgment,  mortgage,  or 
otherwise,  upon  either  of  such  buildings  or  other  improve- 
ments, or  upon  the  land  upon  which  the  same  are  situated."  ^° 
The  cases  to  which  this  provision  applies  have  been  already 
considered.^^ 

§  503.  Same.  When  provision  as  to  two  or  more  build- 
ings applicable.  In  enacting  section  eleven  hundred  and 
eightj'-eight,^-  the  legislature  had  in  mind  those  cases  where 
it  was  possible  to  designate  the  amount  due  on  each  of  sev- 
eral buildings,  and  did  not  intend  that  the  section  should 
apply  to  any  other  class  of  cases.^^     If  materials  are  fur- 

*»  Kerr's  Cye.  Code  Civ.  Proc.,  §  1188. 

^0  Dickenson  v.  Bolyer,  55  Cal.  285.  286;  Booth  v.  Pendola,  88  Cal. 
36,  43,  23  Pac.  Rep.  •00,  25  Id.  1101;  Hamilton  v.  Dellii  M.  Co.,  118  Cal. 

148,  151,  50  Pac.  Rep.  378;  Tredinnick  v.  Red  Cloud  M.  Co.,  72  Cal.  78,  84, 
13  Pac.  Rep.  152  (judgment;  consolidated  mining  claim).  See  Wil- 
liams V.  Mountaineer  G.  M.  Co.,  102  Cal.  134,  141,  34  Pac.  Rep.  702,  36  Id. 
388;    Lothian  v.  Wood,  55  Cal.  159,  163. 

See   §504,   post,   and   "Claim,"    §§378,    406,   ante. 

Idaho.     Postponing  lien:  Phillips  v.  Salmon  R.  M.  &  D.  Co.,  9  Idaho 

149.  72  Pac.  Rep.   886. 

New  Mexico.     See  Post  v.  Fleming,  10  N.  M.  476,  62  Pac.  Rep.  1087. 

Oregon.  See  Smith  v.  Wilcox,  44  Oreg.  323,  75  Pac.  Rep  710,  74  Id. 
708. 

Utah.  The  statement  required  by  Rev.  Stats.  1898,  §  1387,  is  for 
the  purpose  of  enabling  the  court  to  protect  the  interests  of  lien 
claimants  among  themselves:  Eccles  L.  Co.  v.  Martin,  87  Pac.  Rep.  713. 
See  Garner  v.  Van  Patten,   20  Utah  342,  58  Pac.  Rep.  684. 

Washington.  Seattle  L.  Co.  v.  Sweeney,  33  Wash.  691,  74  Pac.  Rep. 
1001.  See  Powell  v.  Nolan,  27  Wash.  318,  67  Pac.  Rep.  712,  720,  68 
Id.    389. 

='  See  §§  366,   378.   406,  and   448.   ante. 

52  Kerr'.«(  Cyc.  Code  Civ.  Proc.,  §  1188. 

53  Southern  Cal.  L.  Co.  v.  Peters.  3  Cal.  App.  478,  86  Pac.  Rep.  816. 
See  §§  378.  406,  448,  and  366,  ante. 

Distribution  of  fund,  order  of  priority  among  claimants:  See 
Hughes  Bros.  v.  Hoover,  3  Cal.  App.  145,  84  Pac.  Rep.  681,   683. 


463  PRIORITIES   OF    LIENS.  §  504 

nished  upon  a  single  order,  and  all  under  one  contract,  by 
the  owner's  material-man,  to  be  used  in  all  of  a  number  of 
buildings,  Avithout  anything  to  show  how  much  of  it  Avas  to 
be  used  in  each  building,  it  is  impossible  for  the  claimant  to 
designate  in  the  claim  of  lien  the  amount  due  to  him  on  each 
of  such  buildings,  under  the  statutory  provision  above  men- 
tioned, as  there  is  nothing  due  him  on  each  of  the  buildings, 
his  claim  existing  against  the  buildings  jointly.^'' 

§  504.  Priorities  inter  sese.  ■ '  Statutory  provision.  Unless 
the  statute  provides  for  priorities  among  liens  for  labor  or 
material,  the  claimants  stand  upon  an  equal  footing.-^"  But 
section  eleven  hundred  and  ninety-four  ^'  provides :  "  In 
every  case  in  which  different  liens  are  asserted  against  any 
property,  the  court  in  the  judgment  must  declare  the  rank 

Colorado.  Sprague  I.  Co.  v.  Mouat  L.  &  I.  Co.,  14  Colo.  App.  107,  60 
Pac.   Rep.   179. 

New  Mexico.  See  Boyle  v.  Mountain  K.  M.  Co.,  9  N.  M.  237,  50  Pac. 
Rep.  347. 

Utah.  See  Eccles  L.  Co.  v.  Martin,  87  Pac.  Rep.  713,  718  (under  Rev. 
Stats.    18j8,  §  1387). 

^*  Southern  Cal.  L.  Co.  v.  Peters,  3  Cal.  App.,  478,  86  Pac.  Rep.  816, 
the  court  saying,  "  Assuming,  without  deciding  the  question,  that  a 
trust  deed  constitutes  a  lien  upon  the  property  within  the  provisions 
of  said  section,  we  are  still  of  tlie  opinion  that  plaintiff's  claim  of 
lien  does  not  come  within  the  section." 

"=  As  to  claim  on  tv\o  or  more  buildings,  see  §§  366,  378,  406,  448,  and 
502,    ante. 

^  Moxley  v.  Shepard,  3  CeA.  64,  65  (1850).  See  In  re  Hoyt,  3  Biss. 
C.  C.   436,   441,   12   Fed.   Cas.,  p.   758. 

See  also  note  79  Am.  Dec.  277. 

And,  under  such  circumstances,  this  is  the  rule,  even  if  some  com- 
menced work  after  the  others:  Crowell  v.  Gilmore,  18  Cal.  370.  372 
(1856),  in  which  it  was  lield  that  the  statute  did  not  give  preference 
to  lien-holders  inter  sese;  there  being  no  original  contract,  tlie  owner's 
laborer  performing  labor  before  the  execution  of  a  mortgage  would 
take  precedence  over  the  same,  and  those  employed  subsequently 
theieto  would  be  postponed  to  the  mortgage. 

See  §§  486  et  seq.,  ante. 

In  Snell  v.  Payne,  115  Cal.  218,  46  Pac.  Rep.  1069,  it  is  said  that 
where  an  overstatement  of  the  amount  due  on  a  claim  of  lien  for 
materials  furnished  for  the  erection  of  buildings  is  upon  its  face  a 
clerical  error,  it  will  not  invalidate  the  lien,  and,  at  most,  can  only 
postpone  it  to  the  other  liens;  but  the  court  cites  no  authority  for 
the   last   point,   which    seems   to   be   dictum. 

See   "  Notice,"   §§  547  et  seq.,   post. 

Montana.  Under  act  of  1865,  priority  was  given  in  order  of  filing 
account  and  claim:    Mason  v.  Germaine,  1  Mont.  267. 

Oregon.     W'illamette  Falls  Co.  v.   Riley,   1  Greg.   183 

"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1194. 


§  505  mechanics'  liens.  464 

of  each  lien,  or  class  of  liens,  which  shall  be  in  the  following 
order,  viz. :  1.  All  persons  performing  manual  labor  in,  on,  or 
about  the  same;  2.  Persons  furnishing  materials;  3.  Subcon- 
tractors; 4.  Original  contractors.  And  the  proceeds  of  the 
sale  of  the  property  must  be  applied  to  each  lien  or  class  of 
liens  in  the  order  of  its  rank."  ^^ 

§  505.  Same.  Nature  of  provision.  It  will  be  observed 
that  the  provision  set  forth  in  the  last  preceding  section 
ranks  liens  according  to  their  quality,  and  not  according  to 
their  order  in  point  of  time,  thus  differing  in  principle  from 
section  eleven  hundred  and  eighty-six,^'*  discussed  in  preced- 
ing sections.*^'*  It  may  sometimes  happen  that  the  land  is  sub- 
ject to  subliens  under  separate  original  contracts,  and  it 
seems  that  the  court  is  to  rank  subclaimants  under  the 
valid  original  contract  under  which  they  claim  respectively. 
Thus  — 

Where  the  valid  original  contract  is  abandoned,"^  a  subse- 
quent valid  original  contract  between  the  owner  and  another 
original  contractor  for  tlie  completion  of  the  work  is  as  dis- 
connected from  the  first  original  contract  as  if  it  were  for  the 
construction  of  a  different  building ;  the  court  saying,  "  It 
would  be  contrarj^  to  the  manifest  policy  of  the  law  upon  this 
subject  to  hold  that  those  who  had  furnished  the  labor  and 
materials  for  the  performance  of  this  second  contract  should 
be  postponed  in  the  payment  therefor  until  after  the  con- 

^'  Where  there  is  an  original  contract,  the  subordination  of  the  lien 
of  the  orig-inal  contractor  to  those  of  his  subclaimants  is  carefully 
preserved  by  other  provisions  of  the  code:  See  Kerr's  Cye.  Code  Civ. 
Proc,    §§  1183,    1184,   and   notes. 

Idaho.  See  Idaho  M.  &  M.  Co.  v.  Davis,  123  Fed.  Rep.  396,  397,  59 
C.  C.  A.  200. 

L^tah.  But  see  Carey-Lombard  L.  Co.  v.  Partridge,  10  Utah  322,  37 
Pac.  Rep.  572  (1890),  which  seems  to  give  priority  to  subcontractors 
in  accordance  with  the  time  when  they  commenced  to  furnish  mate- 
rials or  do  work  (dictum);  and  see  Morrison  v.  Carey-Lombard  Co., 
9  Utah  70,  33  Pac.  Rep.  238  (1890),  which  holds  that  priority  is  given 
a  subcontractor  by  filing  the  notice  of  intention  to  furnish  materials 
over  any  other  subcontractor  who  may  commence  to  do  work  or  to 
furnish  materials  between  the  date  of  his  making  the  contract  and 
the  date  of  his  entering  upon  the  performance  of  it. 

5»  Kerr's  Cyc.  Code  Civ.  Proc,  §  1186. 

^  See  §§  487  et  seq.,  ante. 

•1  See  "  Abandonment,"  §§  358  et  seq.,  ante. 


465  PRIORITIES   OF   LIENS.  §§  500,507 

tract  price  of  their  contractor  had  been  absorbed  in  the  satis- 
faction of  claims  entirely  disconnected  with  the  contract 
under  which  they  had  furnished  this  labor  and  materials."  °^ 

§  506.  Same.  Effect  of  constitution  on  statutory  pro- 
vision. The  constitution  of  California  places  mechanics,  ma- 
terial-men, artisans,  and  laborers  of  every  class,  who  bestow 
labor  or  furnish  material  upon  or  for  a  building,  on  an  equal 
footing  as  to  priority ;  and  such  equality  cannot  be  impaired 
or  destroyed  by  the  legislature ;  and  section  eleven  hundred 
and  ninety-four,^^  in  so  far  as  it  attempts  to  destroy  the 
equality  of  such,  constitutional  mandatory  liens,  is  uncon- 
stitutional, but  so  much  of  the  provision  as  relates  to  the 
preference  of  laborers  and  material-men  to  contractors  and 
subcontractors,  and  subcontractors  to  contractors,  does  not 
violate  the  constitution."* 

§  507.  Same.  Insufficient  proceeds.  Prorating.  Subject 
to  the  rules  stated  in  the  sections  immediately  preceding, ®° 
and  in  subordination  to  the  constitutional  limitations  as  to 
the  constitutional  mandatory  liens,  which  have  been  fully 
developed  in  the  foremost  portion  of  this  work,""  where  there 
are  insufficient  proceeds  to  satisfy  all  claims  in  the  same 
rank,  they  should  be  prorated  among  those  in  the  same 
rank."' 

«=  Johnson  v.  La  Grave,  102  Cal.  324,  326,  36  Pac.  Rep.  651.  See 
Green  v.  Clifford,  94  Cal.  49,  51,  29  Pac.  Rep.  331. 

Quare:  What  is  the  rank  of  an  owner's  laborer  or  material-man 
whose  claim  is  filed  before  an  original  contract  is  entered  into  ?  See 
Barber  v.  Reynolds.  44  Cal.  519,  533. 

See  also  §§  486  et  seci.,  ante. 

Idaho.  But  see  Pacific  States  S.  L.  &  B.  Co.  v.  Dubois,  11  Idaho  319, 
83  Pac.  Rep.  513. 

«'  Kerr's  Cyc.  Code  Civ.  Proc.,   §  1194. 

«^  Miltimore  v.  Nofziger  Bros.  L.  Co.  (Cal.  Sup.,  April  2,  1907),  90 
Pac.  Rep.  114;  Stimson  M.  Co.  v.  Nolan  (Cal.  App.,  June  19,  1907),  91 
Pac.  Rep.  262. 

See  §§  28,  42,  ante. 

«^  See  §§  504  et  seq.,  ante. 

'«  See  §  42,  ante. 

"  See  Moxley  v.  Shepard,  3  Cal.  64.  65   (1850). 

Colorado.     Action    to    marshal    lien:    See    San    Juan    H.    Co.    v.    Car- 
rother.s,  7  Colo.  App.  413,  43  Pac.  Rep.  1053. 
Mech.  Liens  —  30 


§508 


MECHANICS     LIENS. 


466 


CHAPTER    XXVI. 

OWNER,    EMPLOYER,    OR    PERSON    CAUSING    IMPROVEMENT 
TO  BE  MADE. 


§508. 
§509. 
§510. 
§511. 
§512. 
§513. 
§514. 
§515. 
§  516. 
§517. 
§518. 
§519. 
§520. 
§521. 
§  522. 
§523. 

§524. 
§525. 
§526. 

§527. 
§528. 
§529. 
§530. 
§531. 
§532. 
§533. 
§534. 

§535. 
§536. 
§537. 
§538. 
§539. 
§540. 
§  541. 

§542. 


Owner  and  employer,  or  purchaser.     Distinction. 
Owner  and  reputed  owner. 

General  rights  of  owner  and  employer.     Scope  of  discussion. 
Same.     Rights  against  contractor.     Statutory  provision. 
Same.     General  rule  as  to  non-payment  of  instalments. 
Same.     Right  to  cancel  contract. 
Same.     Right  of  owner  to  retain  fund. 
Same.     Offsets   and   counterclaims.     Generally. 
Same.     Offsets  and  counterclaims  against  different  payments. 
Same.     Damages   for   delay   in   performance. 
Same.     Completion  of  contract  by  owner. 
Same.     Right  to  complete  construction   upon  abandonment. 
Same.     Right  to  materials  upon  abandonment. 
Same.     Rights  against   others. 
Same.     Payments. 

General  obligations  of  owner  and  employer.     Scope  of  dis- 
cussion. 
Same.     Duty  to  file  statutory  original  contract. 
Same.     Duty   to  withhold   payments. 

Same.     Liability  of  owner  on  breach  or  abandonment.   Statu- 
tory provision. 
Same.     Application  of  statutory   provision. 

Void  contract  abandoned. 

Non-statutory  original  contract. 

Destruction  of  building. 

Liability  of   fee   for   improvements   by   trespasser. 

Application  of  payments  by  subclaimants. 

Payment  of  orders  of  contractor.    Splitting  demands. 

Orders  on  owner's  mortgagee.     Destruction  of  build- 


Same. 
Same. 
Same. 
Same. 
Same. 
Same. 
Same, 
ing, 
Same. 
Same. 
Same. 
Same. 
Same. 
Same. 
Same. 


Voluntary  payment  of  contractor's  debts. 
Guaranty    not   a    prohibited    payment. 
Owner  as  stakeholder. 

Liability   for   costs    and    interest.     Interpleader. 
Personal   liability. 

Liability  of  owner  or  employer  under  valid  contract. 
Payment  to  subclaimants.   Valid  contract.    Last  pay- 
ment. 
Same.     Liability  of  owner  under  void  contract. 


H 


467  IMPROVEMENT    CAUSED    BY   WHOM.  §  508 

§  543.     Same.     Void  contract.     Penal  provision. 
§  544.     Same.     Statute  measure   of  liability  under  void  contract. 
§  545.     Same.     Personal    liability   to   subclaimants  under  void   con- 
tract. 
§  546.     Same.     False  representations  by  owner  as  to  completion  of 
building. 

§  508.  Owner  ^  and  employer,  or  purchaser.  Distinction. 
The  distinction  must  always  be  observed  between  the 
"  owner  "  of  the  property,  and  the  "  emploj^er  "  of  the  con- 
tractor or  claimant,  or  purchaser  of  the  materials ;  for  the 
two  latter,  or  the  person  who  "  caused  the  building  to  be 
erected,"  may  not  be  the  owner.-  In  the  discussion  in  this 
and  the  following  chapters,  the  word  "  owner "  may  be 
generally  taken  to  include  the  "  person  who  caused  the 
improvement  to  be  made,"  unless  otherwise  shown  by  the 
context.  The  "  owner  "  mentioned  in  the  statute  ^  refers  to 
the  one  holding  the  legal  title ;  and  a  mere  vendee  under  a 
contract  of  sale  is  not  the  "  owner."  * 

'  Infant  and  guardian  as  "owner":  See   "Contract,"   §199,   ante. 

See  also  §§  203,  204,  236,  ante. 

Utah.  Death  of  owner;  presentation  of  claim  to  executrix,  sub- 
contractors' material-man:  Eccles  L.  Co.  v.  Martin,  87  Pac.  Rep.  713, 
715. 

2  See  Corbett  v.  Chambers,  109  Cal.  178,  182,  41  Pac.  Rep.  873;  Mar- 
chant  V.  Hayes,  120  Cal.  137,  139,  49  Pac.  Rep.  840. 

See  "  Due  Process  of  Law,"  §§  32  et  seq.,  ante. 

3  Kerr's  Cyc.  Code  Civ.  Proc,  §  1183. 

*  Hinckley  v.  Field's  B.  &  C.  Co.,  91  Cal.  136,  139,  27  Pac.  Rep.  594 
(decided  before  amendment  of  1903). 

See  "  Orig-inal  Contractor,"  §§  45  et  seq.,  ante. 

Colorado.  Tlie  grantee  in  a  deed  placed  in  escrow  is  the  "owner": 
Chicago  L.  Co.  v.  Dillon,  13  Colo.  App.  196,  56  Pac.  Rep.  989. 

Worlv  niii.st  be  done  and  in:iterial  t'lirnislied  by  contract  witli  owner, 
and  the  claimant  must  ascertain  for  himself  whether  the  other  party 
to  the  contract  has  or  has  not  an  interest  in  the  land.  This  has  been 
clearly  decided  by  the  Colorado  supreme  court  in  Rico  R.  &  M.  Co.  v. 
Musgrave,  14  Colo.  79,  23  Pac.  Rep.  458,  459.  The  party  through 
whose  contract  the  claimant  derives  his  right  to  file  a  lien  must  have 
an  interest  in  the  land,  or  a  claim  to  the  land.  Such  is  the  statutory 
language.  The  grantor's  lien  is  certainlj'  not  a  claim  to  the  land  or 
an  interest  in  it,  nor  has  it  ever  been  so  held.  It  has  been  directly 
decided  otherwise  by  the  supreme  court:  Fallon  v.  Worthington,  13 
Colo.  559,  22  Pac.  Rep.  960,  6  L.  R.  A.  708.  That  was  a  well-considered 
case,  and  is  a  lucid  and  accurate  statement  of  the  law  by  Commis- 
sioner Pattison.  Therein  it  was  held  that  such  a  lien  was  but  a  chose 
in  action.  It  excludes  any  idea  of  ownership.  It  was  further  held  that 
this  lien,  whether  it  arose  from  a  contract,  or  was  implied  by  the  law 
from  equitable  considerations  and  circumstances,  conferred  no  right 
to  the  property  on  the  holder.     As  it  was  said,  quoting  from  another 


§  509  mechanics'  liens.  468 

§  509.  Owner  and  reputed  owner.  The  code  '  now  makes 
the  distinction  between  the  "  owner "  and  the  "  reputed 
owner."  The  intention  of  the  legislature  seems  to  be,  that, 
in  reference  to  actual  contractual  relations  between  the 
"  reputed  owner  "  and  the  claimant,  such  "  reputed  owner  " 
should  be  bound  according  to  the  rules  of  the  common  law 
and  by  the  statutory  liability  imposed  upon  his  interest  in  the 
property,  and  upon  him  personally,  by  the  service  of  a  notice 
upon  him  of  the  claims  of  subclaimants,  in  the  nature  of  a 
garnishment,  under  section  eleven  hundred  and  eighty-four,® 
thus  creating  a  lien  upon  the  fund,  independently  of  the  lien 
upon  the  property,  and  that,  so  far  as  such  contract  affects 
the  interest  of  the  real  owner  in  the  land,  such  interest  should 
only  be  affected  upon  the  principle  of  estoppel,  statutory  or 
equitable/ 

case,  "It  is  neither  jus  ad  rem  nor  jus  in  re."  This  being-  true,  and 
this  being-  its  definition,  it  cannot  be  legitimately  contended  the 
g-rantor's  lien  -was  an  interest  in  or  a  claim  to  the  property.  It  -was 
simply  a  naked,  equitable  right,  -which  might'  be  enforced  in  equity, 
and  reinvest  the  grantor  with  the  title  which  had  passed:  Griflfin  v. 
Seymour.    15   Colo.   App.   487.    63   Pac.   Rep.   S09. 

Before  the  amendment  of  tbe  meehanic's-lien  law  of  18S3,  which 
only  authorized  a  lien  under  contract  of  the  owner,  persons  having  a 
vendor's  lien  on  the  property,  although  in  possession  thereof,  are  not 
the  owners  of  the  property  within  the  meaning  of  the  statute,  and 
such  contract  made  with  thei-n  cannot  form  the  basis  of  the  lien: 
Griffin  v.  Seymour,  15  Colo.  App.  487,  63  Pac.  Rep.  809. 

A  contract  to  perform  labor  upon  a  mine,  upon  the  completion  of 
which  the  laborer  was  to  receive  an  undivided  interest  in  the  prop- 
erty, does  not  constitute  him  the  owner  or  agent  of  the  owner,  within 
3  Mills's  Ann.  Stats.,  1st  ed.,  §  2867:  Maher  v.  ShuU,  11  Colo.  App.  322, 
327,    52   Pac.    Rep.    1115. 

Interest  of  owner  not  liable  under  contract  with  lessee,  under  3 
Mills's  Ann.  Stats.,  1st  ed.,  §2873:  Morrell  H.  Co.  v.  Princess  G.  M. 
Co.,   16  Colo.  App.  54,   63  Pac.  Rep.  807. 

Owner  leasing  mine  in  small  blocks,  under  Session  Laws  1895,  p. 
202:    See  Wilkins  v.  Abell,   26  Colo.  462,   58  Pac.  Rep.  612. 

Montana.  Section  2140,  Code  Civ.  Proc,  points  out  the  person  whose 
interest  is  to  be  charged  with  the  lien,  and  is  the  proper  person  to  be 
named  in  the  claim:  Missoula  M.  Co.  v.  O'Donnell,  24  Mont.  65,  60  Pac. 
Rep.   594,   991. 

=  Kerr's  Cyc.  Code  Civ.  Proc,  §§  1183,  1184,  as  amended  in  1887,  in- 
serting ti.e  word  "  reputed  "   before  "  owner.'' 

«  Kerr's  Cyc.  Code  Civ.  Proc,  §  1184. 

'  See  "Constitutional  Aspects,"  §§28  et  seq.,  ante;  "Estoppel," 
§§  469  et  seq.,  ante;    also  "Notice,"  §§  547  et  seq.,  post. 

The  expression  "  reputed  owner  "  seems  to  be  used  synonymously 
with  the  expression  "  the  person  who  contracted  with  the  contractor," 
in  §  1184,  Kerr's  Cyc.  Code  Civ.  Proc.,  and  with  the  expressions  "  em- 
ployer "  and  "  person  who  caused  "  the  building  to  be  constructed,  in 
§§  1185  and  1187,  Kerr's  Cyc.  Code  Civ.  Proc. 


469  IMPROVEMEXT    CAUSED   BY   WHOM.  §§  510,  511 

§  510.  General  rights  of  owner  and  employer.  Scope  of 
discussion.  The  general  rights  of  the  owner  or  employer, 
measured  by  the  correlative  duties  owing  to  him  by  claim- 
ants, have  already  been  discussed  in  several  places.®  It  will 
therefore  be  unnecessary'  to  discuss  in  detail  what  has  else- 
where been  developed  in  full.  General  statements,  only, 
as  to  such  matters  may  consequently  be  looked  for  in  this 
chapter. 

§  511.  Same.  Rights  against  contractor.  Statutory  pro- 
vision. Where  liens  are  filed,  and  actions  commenced  to 
foreclose  the  same,  the  statute  provides  that  "  the  owner 
may  withhold  from  the  contractor  the  amount  of  money  for 
which  [such]  lien  is  filed;  and  in  case  of  judgment  against 
the  owner  or  his  property,  upon  the  lien,  the  said  owner 
shall  be  entitled  to  deduct  from  any  amount  clue  or  to 
become  due  by  him  to  the  contractor,  the  amount  of  such 
judgment  and  costs;  and  if  the  amount  of  said  judgment 
and  costs  shall  exceed  the  amount  due  by  him  to  the  con- 
tractor, or  if  the  owner  shall  have  settled  with  the  con- 
tractor in  full,  he  shall  be  entitled  to  recover  back  from 
the  contractor  any  amount  so  paid  by  him,  the  said  owner, 
in  excess  of  the  contract  price,  and  for  which  the  contractor 
was  originally  the  party  liable."  ^ 

*  See  "Obligations  of  Original  Contractor,"  §§64  et  seq.,  ante:  "Of 
Subcontractors,"  §76,  ante;  "Of  Material-man,"  §§102  et  seq.,  ante; 
"Of  Laborers,"  §§117  et  seq.,  a-  '  e.  See  also  "Valid  Contract,"  §§315 
et  seq.,  ante;  "Void  Contract,"  §§319  et  seq.,  ante;  "Extent  of  Lien," 
§§459  et  seq.,  ante;  "Completion  of  Contract,"  §§334  et  seq.,  ante; 
"Estoppel,"   §§469   et  seq.,   ante. 

9   Kerr's  Cye.  Code  Civ.  Proc,   §  1193. 

In  Boas  v.  Mjiloney,  138  Cal.  105,  107,  70  Pac.  Rep.  1004,  the  court 
stated  (obiter)  that  the  owner  could  hold  the  contractor  liable  for 
liens  filed  against  the  owner's  property  in  excess  of  the  contract 
price,  where  the  contract  is  void.  A  material-man,  giving  notice  that 
claims  for  material  furnished  for  the  construction  of  a  building  after 
the  delivery  of  an  order  for  payment  due  the  contractor  in  accord- 
ance with  the  terms  of  the  contract,  and  after  the  same  has  been 
assigned  to  a  bona  fide  purchaser  for  value,  cannot  enforce  his  claim 
against  the  owner  of  the  building  to  the  extent  of  such  order:  Long 
Beach  S.  Dist.  v.  Lutge,  129  Cal.  409,  62  Pac.  Rep.  36,  explaining  New- 
port W.  &  L.  Co.  V.  Drew,  125  Cal.  585,  58  Pac.  Rep.   187. 

Montana.  A  judgment  in  favor  of  a  subcontractor  in  a  suit  by  liim 
against  the  principal  contractor  is  not  res  judicata  as  to  the  owner: 
See  Wagner  v.  St.  Peter's  Hospital,  32  Mont.  206.  79  Pac.  Rep.  1054; 
Duignan    v.    Montana    Club,    16    Mont.    189,    40    Pac.    Rep.    294    (1887). 


§§  512-514  mechanics'  liexs.  470 

§  512.  Same.  General  rule  as  to  non-pajmient  of  instal- 
ments. In  accordance  with  the  statutory  provisions  set  forth 
in  the  last  preceding  section,  if  any  lien  exists  upon  the 
property  at  the  time  when  an  instalment,  under  the  terms  of 
a  valid  statutory  original  contract,  would  otherwise  become 
due,  the  existence  of  such  lien  is  sufficient  excuse  for  non- 
payment of  such  instalment.^" 

§  513.  Same.  Right  to  cancel  contract.  In  those  cases 
where  the  contract  is  void  for  failure  to  comply  with  the 
statute,  the  owner  cannot  maintain  an  action,  under  certain 
circumstances,  to  cancel  the  contract,  nor,  if  valid,  can  he 
do  so  where  he  does  not  offer  to  do  equity,  by  reimbursing 
the  contractor  who  has  incurred  expense  in  placing  building 
material  on  the  ground  and  in  commencing  work  and  opera- 
tions under  the  contract." 

§  514.  Same.  Right  of  ovi^ner  to  retain  fund.  Where  the 
promise  of  the  contractor  to  protect  the  buildings  from  liens, 
and  the  promise  of  the  owner  to  pay  for  the  work  done 
thereon,  are  mutual  and  dependent,  the  owner  is  authorized 
to  retain  the  money  due  the  contractor,  to  meet  the  liens 
filed  against  the  property.^^ 

Oregon.  Right  to  require  production  of  receipted  bills  before 
making-  final  payment:  Hughes  v.  Lansing,  34  Oreg,  118,  55  Pac.  Rep. 
95,   97,   75  Am.   St.   Rep.   574. 

See   "  Obligations  of  Original  Contractor,"   §§  64   et  seq.,   ante. 

"  W'yman  v.  Hooker,  2  Cal.  App.   36,   40,   83  Pac.   Rep.   79. 

"  Sullivan  v.  California  R.  Co.,   142  Cal.   201,   204,   75  Pac.  Rep.   767. 

"  Ernst  V.  Cummings,  55  Cal.  179,  184. 

See  "Construction,"  §§  216  et  seq.,  ante. 

Utah.  The  owner  inay  retain  sufficient  to  cover  subclaimants'  liens 
and  pay  the  same;  but  in  no  other  respect  relating  to  the  subcontract 
price  is  the  owner  concerned:  Sierra  Nevada  L.  Co.  v.  W'hitmore,  24 
Utah  130,  66  Pac.  Rep.  779,  781. 

Washington.  W^here  the  original  contract  obligates  the  contractor 
to  supply  all  materials  and  labor,  and  a  bond  is  given  to  secure  the 
performance  of  the  conditions  of  the  contract,  the  owner  is  entitled 
to  maintain  an  action  on  the  bond  without  first  paying  mechanics' 
liens  or  suffering  judgment  therefor  to  be  taken.  The  owner  is  not 
obliged  to  delay  action  on  such  bond,  but  may  treat  the  contractor's 
failure  to  keep  the  property  free  from  encumbrances  as  a  breach  of 
the  contract.  The  owner,  however,  is  not  obliged  to  do  so,  but  may 
wait  until  the  lien  has  befen  adjudged  to  be  a  charge  on  her  property, 
and  thus  escape  the  burden  of  proving  the  validity  of  such  liens  and 
the  amount  of  the  indebtedness:  Friend  v.  Ralston,  35  Wash.  422,  77 
Pac.  Rep.  794,  797. 


471  IMPROVEMENT    CAUSED    BY    WHOM.  §  515 

§  515.  Same.  Offsets  and  counterclaims.  Generally.  The 
owner  may  take  an  assignment  of  the  claims  of  subclaimants 
after  the  claims  are  tiled,  and  offset  them  against  the  con- 
tractor.^^ If  a  contract  provides  that  the  contractor,  after 
the  acceptance  of  the  work  contracted  for,  shall  cancel  and 
release  the  property  from  all  claims  that  may  have  accrued 
in  carrying  out  the  work,  a  lien  on  the  property,  paid  by  the 
owner  for  materials  put  into  the  building,  including  attor- 
neys' fees  and  all  expenses  connected  with  it,  may  be 
allowed  as  a  counterclaim,  and  deducted  from  the  amount 
otherwise  due  the  contractor,  under  section  eleven  hundred 
end  eighty-three  of  the  Code  of  Civil  Procedure ;  and  that 
is  all  that  the  owner  has  a  right  to  demand.'^* 

In  case  of  a  valid  statutory  original  contract,  while  it 
marks  the  limit  of  the  owner's  liability,  and  the  payment  of 
the  final  twenty-five  per  cent  before  the  thirty-five  days  after 
the  completion  of  the  contract,  under  section  eleven  hundred 
and  eighty-four,^^  may  be  void,^*^  and  the  employer's  interest 
in  the  property  may  be  liable  for  the  same ;  yet  if  the 
employer  has  any  "  lawful  credits,"  under  section  twelve 
hundred,^'^  or  otherwise,  it  was  at  first  held  that  he  is  entitled 
to  the  same,  to  be  deducted  from  said  twentj^-five  per 
centum. ^^ 

Completion  payment.  If  the  owner  is  obliged  to  furnish 
material  and  labor  to  complete  a  contract  abandoned  by  the 
contractor,  or  if  material  of  cheaper  value  is  substituted  in 
the  building,  the  owner  may  claim  an  allowance  for  any  of 
these  matters,  to  be  deducted  from  the  payment  due  upon 
completion,  if  such  allowance  were  contemplated  by  the 
terms  of  the  valid  contract,  and  likewise  liquidated  damages 

"  Shaw  V.  Wandesforde,  53  Cal.   300,   302. 

See  §  636,  post. 

"  Wyman  v.  Hooker,  2  Cal.  App.  36,  40,  83  Pac.  Rep.  79. 

15  K,.rr*s  Cyc.  Code  Civ.  Proc,  §  1184. 

"  &ee  §§  274  et  seq.,  ante. 

"  Kerr's  Cye.  Code  Civ.  Proc,  §  1200. 

"  Reed  v.  Norton,  90  Cal.  590,  593,  602,  26  Pac.  Rep.  767,  27  Id.  426 
(what  such  "  lawful  credits  "  might  be  does  not  clearly  appear  from 
the  opinion). 

See  §§  317,  318,  ante,  and  see  §§  516  et  seq.,  post. 

Right  of  owner  to  eredit.s,  a8  ugaiuHt  tlie  original  eontraetor:  See 
California  I.  C.  Co.  v.  Bradbury,  138  Cal.  328,  332,  71  Pac.  Rep.  346,  617, 


§  516  mechanics'  liens.  472 

for  delay,  being  a  deduction  or  offset  which,  hut  for  the  lien 
law,  the  owner  would  have  the  right  to  counterclaim  against 
the  amount  found  due  under  the  contract.^" 

Final  payment.  It  has  recently  been  held  that  the  fund 
amounting  to  twenty-five  per  cent  of  the  contract  price,  to  be 
held  thirty-five  days  after  the  completion  of  the  building,  in 
case  of  a  valid  contract,  is  practically  the  only  money  avail- 
able to  meet  the  demands  of  lien  claimants,  aside  from  the 
liability  of  the  owner  as  fixed  by  notice  to  withhold  pa}'- 
ments,  and  this  amount  cannot  lawfully  be  depleted  or 
reduced  to  the  injury  of  such  claimants;  and  if  there  be  no 
completion  payment  provided  for  in  such  contract,  or  it  be 
more  than  exhausted  by  the  demands  of  the  owner,  then  the 
excess  of  such  demand  cannot  be  made  a  charge  against 
such  final  payment  of  twenty-five  per  cent,  as  the  same  is  a 
legislative  sequestration  to  meet  the  demands  of  claimants; 
and  for  such  excess  the  owner's  right  of  recovery  is  against 
the   contractor  alone/® 

^  516.  Same.  Offsets  and  counterclaims  against  different 
payments.  In  reference  to  the  provisions  of  section  eleven 
hundred  and  eighty-four,^"  that  the  whole  contract  price 
shall  not  be  diminished  by  any  prior  or  subsequent  indebted- 
ness, offset,  or  counterclaim  in  favor  of  the  reputed  owner 
and  against  the  contractor,  the  claim  has  reference,  in  the 
first  place,  to  offsets  not  arising  under  the  terms  of  the  con- 
tract, and  as  to  which,  from  an  inspection  of  the  contract, 
material-men  and  laborers  could  have  no  notice.  Manifestly, 
it  would  be  unjust  if,  as  against  the  demands  of  such,  the 
owner  were  allowed  to  plead,  in  reduction  of  the  contract 
price,  some  claim  against  the  contractor  as  to  which,  in  the 
very  nature  of  things,  they  could  have  had  no  notice.  These 
classes  of  oft'sets  or  counterclaims,  whether  arising  before 
the  execution  of  the  contract,  or  subsequent  thereto,  are  all 

"  Hampton  v.  Christensen,   148  Cal.  729,  735,  84  Pac.  Rep.  200. 
Owner   entitled   to   credit    for   payment   of   claini.s   before   filini;   lien: 

See  Dunlop  v.  Kennedy  (Cal..  Aug-.  31,  1S93),  34  Pac.  Rep.  92   (rehearing 
granted). 

20  Kerr's  Cyc.  Code  Civ.  Proc,  §  1184. 


473  IMPROVEMENT    CAUSED    BY    WHOM.  §  516 

excluded.-^  But,  upon  the  other  hand,  certain  matters  of 
offset,  if  provided  for  by  the  terms  of  the  contract  itself, 
may,  both  with  justice  and  legality,  be  allowed. 

Abandonment  by  contractor,  etc.  If  the  owner,  for 
example,  is  obliged  to  furnish  material  and  labor  to  complete 
a  contract  abandoned  by  the  contractor,  or  if  material  of 
cheaper  value  is  substituted  in  the  building,  or  if,  upon 
default  of  the  contractor  to  complete,  the  owner  enters  into 
the  possession  of  the  uncompleted  building,  no  one  could 
question  the  justice  of  the  owner's  claim  for  an  allowance  for 
any  of  these  matters,  if  an  allowance  for  them  was  contem- 
plated by  the  provisions  of  the  contract ;  for  the  contract 
price  is  established  and  agreed  to  in  express  contemplation 
of  the  fact  that  the  particular  material  shall  be  used,  and 
that  the  building  shall  be  turned  over  to  the  owner  com- 
pleted. If  the  particular  materials  are  not  used,  if  the 
building  is  turned  over  uncompleted,  so  that  the  owner  has 
to  accept  it  unfinished,  or  complete  it  at  his  own  cost,  there 
has  been  a  failure  by  so  much  to  put  the  amount  of  the  con- 
tract price  into  the  structure,  and  it  would  be  manifestly 
unjust  that  the  owner  should  be  expected  to  pay  for  that 
which,  without  any  fault  of  his  own,  he  has  not  received. -- 

Items  of  damages  for  failure  to  complete  in  time  differ 
somewhat  from  the  damages  where  the  loss  was  occasioned 
by  the  necessity  of  the  owner  to  make  good  the  deficiencies 
of  the  contractor  in  the  furnishing  of  omitted  material.  It 
is  a  perfectly  legal  contract  which  makes  time  of  completion 
of  its  essence,  and  provides  that  the  contractor,  for  a  failure 
to  perform  in  time,  shall  make  good  to  the  owner  such  loss 
as  the  latter  may  sustain  thereby.  More  than  this,  it  is  a 
deduction  or  offset  which,  but  for  the  lien  law,  the  owner 
would  have  the  unquestioned  right  to  claim  from  the  amount 
found  due  the  contractor  under  the  contract. -- 

Final  payment.  After  providing  that  no  payment  shall  be 
made  until  the  commencement  of  the  work,  the  legislature 

"  See  Dore  v.  Sellers,  27  Cal.  593;  Sclimid  v.  Busch.  97  Cal.  1S8,  31 
Pac.   Rep.   893. 

"  Hampton  v.  Christensen,  148  Cal.  729.  736,  737,  84  Pac.  Rep.  200. 
The  case  of  Reed  v.  Norton,  90  Cal.  590,  593,  26  Pac.  Rep.  767,  27  Id. 
426,  was  not  noticed  in  this  opinion. 


§  516  mechanics'  liens.  474 

sets  aside  a  fund  amounting  to  twenty-five  per  cent  of  the 
contract  price,  to  be  held  for  thirty-five  days  after  the  com- 
pletion of  the  building,  and  this  fund,  in  case  of  a  valid  con- 
tract, is  practically  the  only  money  available  to  meet  the 
demands  of  the  lien  claimants.  Whatever  may  be  said  of 
other  payments,  this  amount  of  money  cannot  lawfully  be 
depleted  or  reduced  to  the  injury  of  any  such  claimant.  If 
it  could  be,  it  would  be  setting  at  naught  the  constitutional 
provision  granting  a  lien  for  the  full  value  of  the  labor 
done  or  material  furnished. ^^ 

Completion  payment.  Upon  the  other  hand,  ample  oppor- 
tunity is  accorded  to  the  owner  by  the  California  law  to  pro- 
tect himself  against  all  derelictions,  omissions,  and  neglects 
upon  the  part  of  the  contractor.  And  this  he  may  do  by 
providing  for  reserved  payment  to  be  made  on  completion, 
sufficiently  large  to  protect  himself  against  any  violation  of 
the  contract.  In  case  of  such  violation,  there  would  then 
be  justly  chargeable  against  the  completion  payment,  and 
chargeable  as  a  first  demand  upon  the  fund,  such  sums  as  the 
owner  might  prove  due  him  in  recoupment  for  damages. 
Out  of  this  payment  would  therefore  first  come  (if  contem- 
plated by  the  terms  of  the  contract)  the  necessary  cost  to 
the  owner  of  completion  in  case  of  abandonment,  the  cost  of 
making  good  trifling  imperfections  and  omissions,  and  the 
proved  damages  in  case  of  failure  to  complete  on  time.  But 
if  there  be  no  such  completion  payment  provided  for  in  the 
contract,  or  if  such  completion  payment  be  more  than 
exhausted  by  the  demands  of  the  owner,  then  the  excess  of 
such  demand  cannot  be  carried  over  and  made  a  charge 
against  the  twenty-five  per  cent  final  payment,  to  the  injury 
of  any  lien  claimant  thereon ;  for,  as  has  been  said,  since  this 
final  payment  is  the  only  fund  which  the  legislature  has 
sequestered  to  meet  the  demand  of  the  lien  claimants,  to 
permit  this  would  be  to  deprive  them  of  their  constitutional 
right  to  a  lien.-- 

=2  Hampton  v.  Christensen,  148  Cal.  729.  736.  737.  84  Pac.  Rep.  200. 
The  case  of  Reed  v.  Norton,  90  Cal.  590,  593,  26  Pac.  Rep.  767,  27  Id. 
426,   was  not  noticed   in   this   opinion. 


475  IMPROVEMENT  CAUSED  BY  "WHOM.  §  517 

§  517.  Same.  Damages  for  delay  in  performance.  The 
consent  on  the  part  of  the  owner  that  the  defendants  con- 
tinue the  work  after  the  stipulated  time  is  not,  of  itself,  a 
waiver  of  damages,  or  of  the  breach  of  the  contract.  Upon 
a  breach,  the  owner,  not  being  himself  in  default,  has  the 
right  to  rescind,  or  permit  the  defendant  to  complete  the 
work  and  sue  for  damages  caused  by  the  default.-^ 

^^  Bryson  v.  McCone,   121  Cal.  153,  53  Pac.  Rep.  637. 

Damages  not  recoverable  for  delay,  ivhere  contract  Tvas  modified  by 
mutual  consent:  See  Boothe  v.  Squaw  Springs  W.  Co.,  142  Cal.  573,  579, 
76  Pac.  Rep.  385. 

Exclusion  of  evidence  as  to  damages  for  delay:  See  Boothe  v. 
Squaw  Spring.s  W.  Co.,  142  Cal.  573,  579,  76  Pac.  Rep.  385. 

See  §  516,  ante. 

Liquidated  damages.  Stipulation  for.  Literal  enforcement:  See  1 
Am.   &  Eng.  Ann.  Cas.  950. 

Ha^vaii.  Action  for  damages  for  breach  of  contract:  McGrew  v. 
Barnes,  7  Hawn.  90. 

Oregron.  The  measure  of  damages  was  held  to  be  the  difference 
between  what  it  would  cost  the  owner  to  finish  the  building  and  what 
he  would  have  had  to  pay  the  contractor  under  the  contract,  together 
with  the  probable  rental  value  of  the  building  during  the  delay,  less 
such  work  and  materials  used  by  the  owner  in  completing  the  build- 
ing, but  not  including  materials  on  the  ground  unattached  to  the 
building,  which  were  held  to  belong  to  the  contractor:  Savage  v. 
Glenn,  10  Oreg.  440.  See  Glenn  v.  Savage,  14  Oreg.  567,  13  Pac.  Rep. 
442. 

When  owner  is  entitled  to  damages  against  contractor  for  delay  in 
performance  of  the  contract,  the  contractor  is  entitled  to  deduct  there- 
from for  delays  occasioned  by  the  owner  himself:  Vanderhoof  v. 
Shell,  42  Oreg.  578,  72  Pac.  Rep.  126,  130. 

Recovery  by  owner  of  excess  of  contract  price,  under  Hill's  Ann. 
Laws,  §  3679:  Cooper  Mfg.  Co.  v.  Delahunt,  36  Oreg.  402,  51  Pac.  Rep. 
649,   60  Id.   1. 

rtah.  Where  interest  is  recoverable,  not  as  a  part  of  the  contract, 
but  by  way  of  damages,  the  giving  or  withholding  thereof  is  largely 
in  the  discretion  of  tlie  court,  and  laches  of  parties  may  be  considered 
in  the  award:  Culmer  v.  Caine,  22  Utah    216,   61   Pac.  Rep.   1008. 

AVashington.  A  property-owner  may  counterclaim  damages  result- 
ing from  the  act  of  a  paving  contractor  in  placing  earth,  excavated 
from  the  streets,  on  the  owner's  lot,  in  an  action  by  the  assignee  of 
the  contractor  to  establish  a  lien  on  the  property:  Young  v.  Borzone, 
26  Wash.  4,  66  Pac.  Rep.  135,  139,  421  (under  Ballinger's  Ann.  Codes 
and  Stats.,  §  4835). 

Damages  for  delay  in  completing  building.  As  long  as  the  con- 
tractor endeavors  to  fulfil  the  contract,  and  complete  the  building  in 
good  faith,  the  owner  is  under  no  obligation  to  interfere  with  him,  and 
need  not  take  charge  of  the  building  or  complete  it,  in  order  that  the 
amount  of  damages  for  delays  may  be  lessened,  so  far  as  the  con- 
tractor's surety  is  concerned:  Leghorn  v.  Nydell,  39  Wash.  17,  80  Pac. 
Rep.    833. 

Costs  and  expenses  reasonably  necessary  to  make  work  conform  to 
original  contract  may  be  recovered  by  the  owner  from  tlie  contractor 
for  failure  to  carry  out  the  contract,  notwitlistanding  that  the  owner 


§§518,519,  mechanics'  LIENS.  476 

§  518.  Same.  Completion  of  contract  by  owner.  Where 
the  contractor  is  preventetl  by  the  owner  from  completing 
a  non-statutory  original  contract,  unless  there  is  a  balance 
due  to  the  contractor  at  the  time  of  abandonment,  or  the 
building  is  completed  by  the  owner  at  a  cost  less  than  the 
contract  price,  a  subclaimant  has  no  lien.-* 

§  519,  Same,  Right  to  complete  construction  upon  aban- 
donment. Where  the  contract  is  for  less  than  one  thousand 
dollars,  and  is  filed,  and  the  contractor  abandoned  the  build- 
ing when  it  was  half  completed,  and  the  contract  provided 
that  the  price  was  to  be  paid  upon  the  completion  of  the 
building,  it  was  held  that  the  owner  had  an  undoubted  right 
to  proceed  with  the  construction  and  complete  the  building 
substantially  as  called  for  under  the  contract.-^ 

had  sold  the  house,  and  that  there  was  no  evidence  of  payment  for 
repairing  any  defects,  or  of  the  sale  of  the  property,  on  account  of 
defects,  for  less  than  otherwise  would  have  been  obtained.  Such  dam- 
ages are  personal:  Ekstrand  v.  Barth,  41  Wash.  321,  83  Pac.  Rep.  305. 

■Vo  v»aiver  of  claims  for  damages  under  an  agreement  whereby 
owner  occupied  preniises:  See  Long  v.  Pierce  Co.,  22  Wash.  330,  61 
Pac.    Rep.    142,    151. 

Action  for  damages:    Main  I.  Co.  v.  Olsen  (Wash.),  86  Pac.  Rep.  1112. 

Damages  for  failure  of  owner  to  permit  claimants,  whose  claims  are 
merged  under  judgment  of  foreclosure  of  liens,  to  occupy  preniises 
under  a  forfeited  leasehold  interest  subject  to  the  lien:  See  Stetson  & 
Post  M.  Co.  v.  Pacific  A.  Co.,  37  Wash.  335,  79  Pac.  Rep.  935. 

"Wyoming.  When  the  contractor  violates  his  contract  as  to  the 
work  or  material,  to  the  substantial  injury  of  the  owner,  the  latter 
may  either  "  refuse  to  pay  the  contract  price  ...  to  the  amount  for 
which  he  is  damaged,  or  he  may  pay  for  and  take  possession  of  the 
buildings  and  tlien  sue  and  recover  of  the  builder  the  amount  of  his 
damages.  And  he  can  recover,  whether  he  knew  of  the  breach  of  con- 
tract by  the  other  party  at  the  time  of  payment  or  not.  In  neither 
case  is  there  any  waiver  of  his  rights  under  the  contract":  Halleck 
V.  Bresnahen,  3  Wyo.  75,  2  Pac.  Rep.  537. 

See  also  §§  334  et  seq.,  ante. 

-*  Turner  v.  Strenzel,  70  Cal.  28,  30,  11  Pac.  Rep.  389  (decided  under 
the  law  before  the  amendment  of  §  1183,  creating  statutory  original 
contracts,  and  before  §  1200,  Code  Civ.  Proc,  was  enacted).  See  McCon- 
nell  V.  Corona  City  W.  Co.,  149  Cal.  60,  63,  85  Pac.  Kep.  929. 

See  "  Prevention,"  §  339,  ante. 

Oregon.     See  Justice  v.  Elwert,  28  Oreg.  460,  43  Pac.  Rep.  649. 

^  Denison  v.  Burrell,  119  Cal.  180,  183,  51  Pac.  Rep.  1.  See  Scammon 
V.  Denio,  72  Cal.  393,  14  Pac.  Rep.  98. 

See  "Obligations,"  §§523  et  seq.,  post;  "Answer,"  §§747  et  seq., 
post. 

AVashington.  See,  as  to  right  to  complete  building  after  the  con- 
tractor's abandonment,  Brodek  v.  Farnum,  11  Wash.  565,  570,  40  Pac. 
Rep.  189. 


477  IMPROVEMEXT    CAUSED   BY   WHOM.  §§  520,  521 

In  case  of  mutual  abandonment  of  the  work,  it  has  been 
held  that  the  right  of  the  owner  to  complete  the  building 
or  other  improvement  without  waiting  thirty  days'  suspen- 
sion of  labor  is  derived  from  the  statute,  and  that  where  the 
right  of  completion  is  given  by  the  contract  itself,  no  ces- 
sation of  labor  for  any  number  of  days  is  a  condition  pre- 
cedent to  the  owner's  right  of  completion,  and  that  such 
completion  is  a  completion  under  the  contract. -° 

§  520.     Same.     Right    to    materials    upon    abandonment. 

The  statute  provides  that  in  case  the  contractor  fails  to 
perform  his  contract  in  full,  or  abandons  the  same  before 
completion,  the  materials  then  actually  delivered  or  on 
the  ground  belong  to  the  owner.-''  This  provision,  proprio 
vigore,  conveys  title  from  the  contractor  to  the  owner,  and 
the  limitations  upon  the  same  have  not  yet  been  developed 
in  California. 

§  521.  Same.  Rights  against  others.  The  general  rights 
of  the  owner  against  claimants  other  than  the  contractor, 
the  same  being  correlative  to  the  duties  owing  by  such  per- 
sons to  the  owner,  have  already  been  somewhat  considered 
under  various  heads,  Avhich  are  noted  below.^*     The  rights 

=»  Hug-hes  Bros.  v.  Hoover,  3  Cal.  App.  145.  84  Pac.  Rep.  681. 

Confounding  "  abandonment  "  and  "  ce.ssation."  This  case,  however, 
seems  to  confound  actual  abandonment  with  that  cessation  from 
work  which,  under  the  statute,  would  be  equivalent  of  completion  for 
the  purpose  of  filing  claims  of  lien:  See  discussion,  §§  348  et  seq.,  ante; 
and  §§  358  et  seq.,  ante. 

='  Kerr's  Cyc.  Code  Civ.  Proe.,  §  1200. 

See  "  Abandonment,"  §S  358  et  seq.,  ante.     See  §  526,  post. 

Oregon.  But,  as  to  materials  belonging  to  contractor,  see  Savage 
V.  Glenn,  10  Oreg.  440. 

AVasliington.  See  Potvin  v.  Denny  H.  Co.,  37  Wash.  323,  79  Pac. 
Rep.   9  4  0. 

-^  As  to  affeeting  liens  of  others,  see  Kerr's  Cyc.  Code  Civ.  Proc, 
S  1201;    and  see  Middleton  v.  Arastraville  M.  Co.,  146  Cal.  219,  225. 

See  "Waiver,"  §§627  et  seq.,  post;  "Impairment  of  Liens,"  §§284 
et  seq.,  ante;  "Alteration  of  Contract,"  §§  326  et  seq.,  ante. 

As  to  rights  with  reference  to  .sale,  see  §§  948  et  seq..  post. 

Indemnifying  o^vuer  against  liens.  Effect  on  material-man.  The 
contractor  and  owner  cannot  deprive  the  material-man  of  his  lien  by  a 
clause  in  the  contract  by  which  the  contractor  agrees  to  indemnify 
the  owner  against  anj-  liens  imposed  by  persons  furnishing  materials 
to  be  used  in  constructing:    Wliittier  v.  Will)ur,  48  Cal.  175,   177   (1868). 

For  extent  of  application  of  provisions  of  §1184.  Kerr's  Cyc.  Code 
Civ.  Proc.,  as  to  right  of  set-off,  see  "  Payments,"  §§  269  et  seq.,  ante. 


§§522,523  mechanics'  liens.  478 

of  the  owner  against  third  persons  not  lien  claimants  will  be 
considered  hereafter.-'* 

§  522.  Same.  Payments.^"  "Where  there  is  no  personal 
liability  against  the  owner,  he  is  not  at  liberty  to  pay,  with- 
out the  consent  of  all  the  parties,  the  amounts  claimed  upon 
the  lien.^^  Where  money  is  paid  to  a  subcontractor  on  gen- 
eral account  by  the  contractor,  and  is  not  paid  to  the  con- 
tractor by  the  owner,  the  latter  has  no  right  to  require  it  to 
be  applied  to  the  account  of  his  own  building  contract. "- 

Subclaimants  cannot  complain  of  payments  when.  Sub- 
claimants  have  no  right  to  complain  of  volunteer  payments 
by  the  owner  beyond  the  contract  price.^* 

§  523.  General  obligations  of  owner  and  employer.^* 
Scope  of  discussion.  It  is  not  intended  to  treat  at  length  of 
matters  elsewhere  more  fully  considered,  nor  of  the  general 

See  also  "Answer,"  §§753  et  seq.,  post;  "Conspiracy  as  to  Contract 
Price,"   §  314,  ante. 

Montana.  The  owner  cannot  enforce  any  contract  between  the 
principal  contractor  and  the  latter's  subcontractor,  and  can  have  no 
action  against  the  subcontractor  for  a  breach  of  such  subcontract: 
Wag-ner  v.   St.   Peter's  Hospital,   32   Mont.   206,   79   Pac.   Rep.    1054,   1055. 

AVashiuRton.  W'here  a  vendee,  who  had  forfeited  his  rights  under 
an  unrecorded  contract  of  sale,  which  provided  that  the  Improvements 
should  remain  upon  the  land,  leased  the  land  to  a  lessee,  who  had  no 
knowledge  of  such  contract,  and  who  erected  improvements  with  the 
knowledge  of  the  owner,  the  latter  is  estopped  to  declare  a  forfeiture 
of  the  contract  of  sale  to  the  prejudice  of  the  lien  of  the  lessee's 
material-man  upon  the  improvement:  Bell  v.  Groves,  20  W'ash.  602, 
56   Pac.   Rep.   401. 

=^  See  chapter  on  "  Third  Persons,"  §§  585  et  seq.,  post.  See  also 
§§  486  et  seq.,  ante. 

'"  Oklahoma.  Payment  of  advances  to  contractor,  not  avoiding  the 
conditions  of  contractor's  bond:  See  American  S.  Co.  v.  Scott,  90  Pac. 
Rep.  7. 

31  Wilson  V.  Samuels,  100  Cal.  514.  519,  35  Pac.  Rep.  148:  Covell  v. 
Washburn,  91  Cal.  560,  563,  27  Pac.  Rep.  859. 

See  "  Obligations  of  Owner."   §§  523  et  seq..  post. 

3-'  Schallert-Ganahl  L.  Co.  v.  Neal,  91  Cal.  362.  365,  27  Pac.  Rep.  743 
(syllabus  misleading). 

See  "  Payments,"  §§  251  et  seq.,  ante. 

^  Southern  Cal.  L.  Co.  v.  Jones,  133  Cal.  242,  245,  65  Pac.  Rep.  378. 

See  §  535.  post. 

^  Inability  of  owner  for  failure  to  file  contractor's  bond,  under 
§  1203,  Kerr'.s  Cyc.  Code  Civ.  Proc..  damages  limited  to  the  amount  of 
lien  claims  not  exceeding  twenty-five  per  cent  of  the  contract  price: 
See  Gibbs  v.  Tally,  63  Pac.  Rep.  168.  s.  c.  reversed,  133  Cal.  373,  65  Pac. 
Rep.  970,  60  L.  R.  A.  815   (unconstitutional). 

See  "  Bond,"  §  281,  ante. 


479  IMPROVEMENT    CAUSED   BY    WHOM.  §§  524,  525 

correlative  rights  of  lien  claimants.  Inquiry  must  be  made 
in  other  parts  of  this  work  for  more  detailed  development  of 
the  general  statements  contained  in  this  chapter,  as  partially 
indicated  in  the  note.^^ 

§  524.     Same.     Duty  to  file  statutory  original  contract. 

Of  the  duty  of  the  owner  or  emi)loyer  to  see  to  it  that  the 
statutory  original  contract  is  filed,  the  supreme  court  has 
said :  "  It  is  said  that  this  view  works  a  hardship  to  the 
respondents.  This  is  probably  so,  for  this  particidar  law 
frequently  works  a  hardship  to  owners  of  property;  but  it 
has  been  heretofore  pointed  out  to  such  owners  that  in  mak- 
ing contracts  for  building  they  must  be  careful  to  comply 
with  the  statute.  .  .  .  While  the  mechanic's-lien  law^  cer- 
tainly interferes  to  a  great  extent  with  the  right  of  a  prop- 
erty-owner to  contract  according  to  his  own  best  judgment 
for  the  erection  of  improvements  thereon,  still  it  is  apparent 
that  the  property-owner  might  take  advantage  of  mechanics 
and  laborers  by  making  a  contract  with  a  contractor  finan- 
cially irresponsible  for  the  construction  of  a  house  actually 
worth  twice  the  amount  of  the  named  contract  price."  ^'^ 

§  525.  Same.  Duty  to  withhold  payments.  If  the  proper 
notice  is  given  to  the  owner,  it  is  his  duty  to  withhold  from 

Duty  of  o^vner  to  see  to  it  tliat  bond  of  contractor  is  fiied,  under 
§1203,  declared  unconstitutional:  See  Mangrum  v.  Truesdale,  128  Cal. 
145,   146,  60  Pac.  Rep.   775. 

Obligations  of  owner  on  contract  to  pay  instalments:  See  Flinn  V. 
Mowry,   131   Cal.   481,   485,   63  Pac.  Rep.   724,   1006. 

"^  See  "Original  Contractor,"  §§61  et  seq.,  ante;  "Of  Subcon- 
tractor," §§70  et  seq.,  ante;  "Of  Material-men,"  §101,  ante;  "Of 
Laborers,"  §§112  et  seq.,  ante;  "Valid  Contract,"  §§315  et  seq.,  ante; 
"Void  Contract,"  §§319  et  seq.,  ante;  "Extent  of  Lien,"  §§438-507. 
ante;  "Performance,"  §§334  et  seq.,  ante;  "Notice  of  Non-responsi- 
bility,"  §§  469   et  seq.,   ante. 

Colorado.  See  Davidson  v.  Jennings,  27  Colo.  187,  60  Pac.  Rep.  354, 
84   Am.   St.   Rep.   49,   48  L.  R.  A.   340. 

Idaho.  Duty  to  employ  competent  and  honest  engineer:  See  Spaul- 
ding  V.  Coeur  D'Alene  R.  &  N.  Co.,  5  Idaho  528,  51  Pac.  Rep.  408. 

Alontana.  Held  to  be  the  duty  of  the  owner  to  see  to  it  that  the 
subcontractors  were  paid  l)efore  paying  contractor:  Gould  v.  Barnard, 
14  Mont.  335,  36  Pac.  Rep.  317. 

Oreg^on.  Liability  of  railroad  company  under  Laws  1889,  p.  75:  See 
Coleman  v.  Oregonian  R.  Co.,  25  Oreg.  286,  35  Pac.  Rep.  656. 

^  San  Francisco  L.  Co.  v.  O'Neil,  120  Cal.  455,  456,  52  Pac.  Rep,  728. 

See  §  294,  ante,  and  "  Spirit  of  the  Law,"  §  6,  ante. 


§  526  mechanics'  liexs.  480 

the  contractor  the  sum  due  him,  or  sufficient  to  meet  the 
claims  of  claimants ;  ^'  and  "vvhere  a  notice  to  withhold, 
served  on  behalf  of  a  lien  claimant,  though  inartificially 
drawn,  is  sufficient  under  the  statute,  it  is  the  duty  of  the 
owner  to  withhold  sutBcient  funds  to  pay  the  claimant's 
demand,  together  with  estimated  costs;  and  his  subsequent 
payments,  after  service  of  that  notice,  even  though  legal  and 
within  the  contemplation  of  the  contract,  cannot  be  allowed 
to  affect  so  much  of  the  fund  as  was  thus  set  apart  by  force 
of  this  notice,  which  operated  in  the  nature  of  a  garnish- 
ment.^^ 

§  526.  Same.  Liability  of  owner  on  breach  or  abandon- 
ment. Statutory  provision.  The  statute""  provides:  "In 
case  the  contractor  shall  fail  to  perform  his  contract  in  full, 
or  shall  abandon  the  same  before  completion,  the  portion  of 
the  contract  price  applicable  to  the  liens  of  other  persons 
than  the  contractor  shall  be  fixed  as  follows :  From  the 
value  of  the  Avork  and  materials  already  done  and  furnished 
at  the  time  of  such  failure  or  abandonment,  including  mate- 
rials then  actually  delivered  or  on  the  ground,  which  shall 
thereupon  belong  to  the  owner,  estimated  as  near  as  may 
be   by  the  standard  of  the  whole   contract  price,   shall   be 

"  Russ  L.  Co.  V.  Garrettson,  87  Cal.  589.  594,  25  Pac.  Rep.  747. 

See  ■■  Notice,"  §§  547  et  seq.,  post. 

Oblij^ation  to  withhold  moneys:  See  VaUey  L.  Co.  v.  Struck,  146  Cal. 
266,    270,    80   Pac.   Rep.    405. 

Colorado.  When  notice  is  given  to  tlie  owner,  he  is  required  to 
withliold  payments  from  the  contractor  of  sufficient  money  due  or  to 
becoine  due  to  answer  the  claims.  If  such  notice  is  not  given,  he  is 
not  required  to  withhold  the  monej':  Chicago  L.  Co.  v.  Newcomb,  19 
Colo.  App.  265,  74  Pac.  Rep.  786,  789. 

Hawaii.  Retention  of  money  due  to  contractor  a  protection  to 
owner:    Allen  v.  Redward,   10  Hawn.  151,  157. 

Utali.  Owner  is  bound  to  take  notice  of  the  liens  of  subclaimants, 
and  any  payments  made  to  the  contractor  after  such  lien  attached 
must  be  held  to  have  been  at  the  owner's  risk  rnd  peril:  Sierra  Ne- 
vada L.  Co.  V.  Whitmore,  24  Utah   130,   66  Pac.  Rep.   779,   781. 

Deduction  from  amount  found  due  olainiant.<<i,  order  paid  by  owner 
previous  to  time  of  giving  order  to  an  assignee:  See  McCornick  v. 
Sadler,  21  Utah  62,  60  Pac.  Rep.   547. 

^  Hampton  v.  Christensen,  148  Cal.  729.  739,  84  Pac.  Rep.  200.  See 
Schallert-Ganahl  L.  Co-,  v.  Neal,  91  Cal.  362,  27  Pac.  Rep.  743;  Corbett 
v.  Chambers,  109  Cal.  178,  41  Pac.  Rep.  873;  French  v.  Powell.  135  Cal. 
640,   68  Pac.  Rep.   92. 

'»  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1200,  approved  March   18.   1885. 


481  IMPROVEMENT    CAUSED   BY   WHOM.  §  527 

deducted  the  pa^-ments  then  due  and  aetuallj'  paid,  according 
to  the  terms  of  the  contract  and  the  provision  of  sections 
eleven  hundred  and  eighty-three  and  eleven  hundred  and 
eighty-four,  and  the  remainder  shall  be  deemed  the  portion 
of  the  contract  price  applicable  to  such  liens."  *° 

§  527.     Same.     Application  of  statutory  provision.     The 

provisions  of  section  twelve  hundred  *^  set  forth  in  the  last 
preceding  section  are  applicable  to  valid  statutory  original 
contracts ;  *-  but,  it  seems,  not  to  non-statutory  original  con- 
tracts/'*  nor  to  void  statutory  original  contracts. ^^ 

In  the  case  of  a  valid  statutory  original  contract,  the  sub- 
claimant's  lien  is  limited  by  the  contract  price,  and,  under 
section  twelve  hundred,^^  such  limitation  remains,  even  if  the 
contractor  "  shall  fail  to  perform  his  contract  in  full,  or  shall 
abandon  the  same  before  completion."  ^® 

*"  What  con.stttute.s  abandonment  has  been  already  considered:  See 
"Abandonment,"  §§  358  et  seq.,  ante. 

See  §  520,  ante. 

Colorado.  Subcontractors  upon  abandonment  are  entitled  to  lien 
for  reasonable  value  to  the  extent  of  amount  due  contractor,  less  dam- 
ages: Jarvis  v.  State  Bank,  22  Colo.  309,  45  Pac.  Rep.  505,  55  Am.  St. 
Rep.  129. 

Oregon.  Under  act  of  1874,  where  the  contractor  was  entitled  to 
an  instalment,  and  the  subclaimant  served  notice  upon  the  owner,  the 
latter  was  held  entitled  to  a  lien,  notwithstanding  the  subsequent 
abandonment  by  the  contractor:  Whittier  v.  Blakely,  13  Greg.  546,  11 
Pac.  Rep.  305.  Materials  upon  ground  not  attached  to  building  upon 
abandonment  belong  to  the  contractor:  Savage  v.  Glenn,  10  Oreg.  440, 
443. 

Utah.  But  see  Carey-Lombard  L.  Co.  v.  Partridge,  10  Utah  322,  37 
Pac.  Rep.   572. 

*'  Kerr's  Cyc.  Code  Civ.  Proe.,  §  1200. 

«  Golden  Gate  L.  Co.  v.  Sahrbacher,  105  Cal.  114,  116,  38  Pac.  Rep. 
635. 

See  "Lien  as  Limited  by  Contract,"  §§  315  et  seq.,  §§  452  et  seq.,  ante, 
and  §  540,  post. 

"  Denison  v.  Burrell,  119  Cal.  180,  183,  51  Pac.  Rep.  1  (altliougli 
8  1200,  Kerr's  Cyc.  Code  Civ.  Proc,  was  not  specifically  referred  to  in 
this  case:  the  contract  was  under  one  thousand  dollars). 

See  "  Definition,"  §§  258  et  seq.,  ante. 

"  Dunlop  V.  Kennedy,  102  Cal.  443,  444,  36  Pac.  Rep.  765. 

«  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1200. 

**  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  C.  Co.,  94  Cal.  229, 
237,  29  Pac.  Rep.   629. 

See  "Effect  of  Validity  of  Contract,"  S§  284  et  seq.,  ante;  and 
"Notice,"  §§547  et  seq.,   post. 

friability   of   owner,    abandonment    of   valid   contract:     McDonald    v. 
Hayes,  132  Cal.  400,  495,  64  Pac.  Rep.  850.     See  Hampton  v.  Christensen, 
148  Cal.  729,  735,  84  Pac.  Rep.  200. 
Mech.  Liens  —  31 


§§  528, 529  mechanics'  liens.  482 

Where  the  owner  completes  the  work,  after  the  contrac- 
tor's abandonment  of  a  valid  contract,  at  greater  expense 
than  the  remainder  of  the  contract  price,  the  lien-holders 
are  not  entitled  to  liens  for  the  full  amount  due  them  from 
the  contractor,  limited  only  by  the  full  contract  price,  less 
payments  made  to  the  contractor,  but  the  aggregate  amount 
of  their  claims  is  limited  by  the  rule  established  in  section 
twelve  hundred,^^  and  they  are  entitled  only  to  a  pro  rata 
share  thereof.*^ 

Where  the  liability  of  the  owner  is  not  established  for  the 
total  amount  of  lien  claims,  under  a  valid  contract,  but  to  an 
amount  for  which  the  owner  declares  himself  liable,  or  an 
amount  fixed  under  section  twelve  hundred,'*"  when  the  con- 
tract is  abandoned,  it  seems  that  the  validity  of  claims  is  a 
question  for  the  consideration  of  the  other  lien  claimants 
as  between  themselves.^" 

§  528.  Same.  Void  contract  abandoned.  In  case  of  void 
statutory-  original  contracts,  the  rule  of  law  under  the  statute 
is  different,  and  subclaimants  have  a  lien,  irrespective  of  the 
question  of  abandonment.^^ 

§  529.  Same.  Non-statutory  original  contract.  In  case 
of  a  hon-statutory  original  contract,  where  the  owner,  with- 
out any  notice  of  the  claim  of  subclaimants,  paid  the  con- 
tractor for  the  work  already  done  under  the  contract, 
although  the  contractor  was  liable  for  damages  to  the  owner 
for  the  unworkmanlike  manner  in  which  the  work  had  been 
performed,  it  was  held  that  no  lien  attached  to  the  building 
in  favor  of  the  subcontractor,  there  being  nothing  due ;  and 
that  if  the  contractor  then  abandoned  the  contract,  the  sub- 
claimant  was  not  "  entitled  to  enforce  a  lien  against  the 
building,  unless,  after  the  owner  has  completed  the  building, 

«  Kerr's  Cyc.  Code  Civ.  Proe.,  §  1200. 

«  McDonald  v.  Hayes,   132  Cal.  490.  495,  64  Pac.  Rep.  850. 

Liiabllity  not  beyond  contract  price:  Soufhern  Cal.  L.  Co.  v.  Jones, 
133  Cal.  242,  244.  65  Pac.  Rep.  37S. 

«  Kerr*.s  Cyc.  Code  Civ.  Proc,  §  1200. 

w  McDonald  v.  Hayes,  132  Cal.  490,  49.6,  64  Pac.  Rep.  850. 

=1  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  C.  Co.,  94  Cal.  229, 
237,    29  Pac.   Rep.   629. 

See  "Void  Contract,"  §§  319  et  seq.,  post. 


483  IMPROVEMENT    CAUSED    BY    WHOM.  §  529 

there  remains  a  balance  of  the  contract  price,  which  may  be 
applied  to  the  satisfaction  of  such  a  claim."  ^-  And  in  case 
of  a  non-statutory  original  contract,  subclaimants  cannot 
have  a  lien  for  more  than  the  amount  due  to  the  contractor 
v^'hen  he  abandons  the  contract,  payment  not  having  been 
intercepted  by  notice  to  the  owner.^^ 

=2  Wiggins  V.  Bridge,  70  Cal.  437,  439,  11  Pac.  Rep.  754  (decided 
under  tne  law  before  the  amendment  of  §  1183,  creating  statutory 
original  contracts,  and  before  §  1200  and  tlie  provisions  of  §  1184  as  to 
abandonment,  were  enacted);  Walsli  v.  McMenomy,  74  Cal.  356,  359,  16 
Pac.  Rep.  17.  See  Kellogg  v.  Howes,  81  Cal.  170,  175,  22  Pac.  Rep.  509, 
6  L.  R.  A.  588. 

See  '•  Notice,"  §§  547  et  seq.,  post. 

Oklahoma.  Payment  by  owner  under  contract  secured  by  bond: 
See  American  S.  Co.  v.  Scott,  90  Pac.  Rep.  7. 

«*  O'Donnell  v.  Kramer,  65  Cal.  353,  4  Pac.  Rep.  204  (before  the 
enactment  of  §  1200,  Kerr's  Cyo.  Code  Civ.  Proo.,  supra).  See  Latson 
V.  Nelson,  11  Pac.  Coast  L.  J.  589;  Kellogg  v.  Howes,  81  Cal.  170,  175, 
22  Pac.  Rep.  509,  6  L.  R.  A.  588;  Walsh  v.  McMenomy,  74  Cal.  356,  359, 
16  Pac.   Rep.    17. 

See  "  LiabiUty,"  §540,  post,  and  "Notice,"  §§547  et  seq.,  post. 

In  Denison  v.  Burrell,  119  Cal.  180,  182,  51  Pac.  Rep.  1,  the  whole 
amount,  $760,  under  a  non-statutory  original  contract,  was  payable 
upon  the  "  completion  of  the  building  and  its  acceptance  by  the 
owner."  The  contractor  abandoned  tlie  building  when  it  was  half 
completed,  and  the  owner  finished  the  building  for  $84  less  than  the 
original  contract  price.  The  court  said:  "  The  contract  being  valid,  it 
follows  and  is  admitted  that  plaintiff's  lien  could  not  be  for  an  amount 
greater  than  the  sum  in  defendant's  hands  due  and  unpaid  to  the  con- 
tractor under  the  contract  at  the  time  of  abandonment.  But,  under  the 
terms  of  this  contract,  there  was  nothing  due  the  contractor  until  the 
completion  of  the  building.  The  owner  had  an  undoubted  riglit  to  pro- 
ceed with  the  construction,  and  to  complete  it,  as  he  did,  substantially 
as  called  for  by  the  contract.  So  doing,  tlie  amount  available  for  the 
liens  of  those  who  had  furnished  materials  or  labor  to  the  contractor 
would  be  only  the  excess  of  the  contract  price  remaining  in  the 
owner's  hands  after  payment  of  the  cost  of  completion.  The  case  is, 
in  principle,  exactly  what  it  would  have  been  had  the  owner,  before 
the  filing  of  the  lien,  paid  to  the  contractor  all  of  the  contract  price 
excepting  eighty-two  dollars.  In  such  a  case,  the  contract  being 
valid,  no  lien  for  a  greater  amount  could  be  permitted."  No  reference 
was  made  to  the  provisions  of  §  1184,  Kerr's  Cyc.  Code  Civ.  Proc, 
quoted  above. 

In  Blythe  v.  Poultney,  31  Cal.  233,  238  (1866),  the  contract  was 
valid,  and  the  final  twenty-five  per  cent  payable  when  the  building 
was  completed  and  accepted;  notice  was  given  the  owner  after  pay- 
ments in  excess  of  the  ainount  due  the  contractor;  the  owner  com- 
pleted the  building  for  $1,447  less  than  the  contract  price,  "and 
this  ascertained,  as  the  court  below  viewed  the  matter,  the  exact 
sum  in  which"  the  owners  were  indebted  to  the  contractor  "upon 
the  contract  when  he  violated  it  by  abandoning  performance  of  it 
on  his  part.  This  mode  of  adjusting  parties'  rights  under  contracts 
of  the  kind  of  that  in  question  is  not  authorized  by  law,  nor  is  it. 
In  our  judgment,  just.  ...  It  may  be  they  agreed  to  pay  more 
than   what    they    had    contracted    for    was  worth;  or  it  may    be    they 


§  §  530, 531  mechanics'  liens.  484 

§  530.  Same.  Destruction  of  building.  If  the  original 
contract  for  several  buildings  is  entire,  and  the  whole  work, 
before  completion,  is  destroyed  bj'  fire,  without  apparent 
fault  of  either  party,  payments  due,  under  the  contract,  upon 
performance  of  certain  conditions  as  to  stage  of  completion 
of  the  work,  cannot  be  recovered  by  the  contractor,  even 
where  one  of  the  structures  has  been  completed  to  the  desig- 
nated stage.^* 

§  531.  Same.  Liability  of  fee  for  improvements  by  tres- 
passer. Where  a  building  is  constructed  in  a  permanent  man- 
ner upon  land,  it  becomes  a  part  thereof,  but  if  it  is  con- 
structed under  contract  with  a  person  who  falsely  repre- 
sents himself  to  be  the  owner  of  the  land,  claimants  have 
a  lien-  on  the  building,  and  it  becomes  a  part  of  such  land, 
subject  to  such  lien.  It  would  be  inequitable  to  say  that  one, 
who  may  elect  to  treat  a  structure  as  a  trespass  and  remove 
it,  may  elect  to  retain  it,  with  know^ledge  that  it  is  burdened 
with  a  lien,  and  yet  hold  it  free  from  such  burden.  If  the 
owner  of  the  fee  desires  to  avail  himself  of  the  benefit  of 
such  structure,  he  is  required,  in  common  honesty,  to  pay 

procured  the  houses  to  be  finished  for  less  than  the  services  and 
materials  for  that  purpose  were  worth.  The  court  cannot  prop- 
erly speculate  in  respect  to  the  matter.  It  is  enough  to  say, 
that,  by  the  abandonment,  Cook  [the  contractor]  lost  the  right,  which 
he  would  have  had,  to  the  full  compensation  agreed  upon,  had  he  fully 
performed  the  contract  on  liis  part.  If  Cook  had  sued  Poultney  and 
Smith  [the  owners]  at  the  time  this  action  was  brought  for  the  ?1,447 
which  the  court  below  finds  to  have  been  due  him  on  the  12th  of 
August,  1865  [when  the  contract  was  abandoned],  he  would  not  have 
been  entitled  to  recover  it,  or  any  part  of  it,  because  no  such  sum  was 
due  him;  and  he  did  nothing  thereafter  to  cause  it  to  become  due 
him;  and  if  he  was  not  entitled  to  recover  it,  Poultney  and  Smith's 
property  could  not  be  rendered  liable  for  it:  Dore  v.  Sellers,  27  Cal. 
588,    595." 

In  Henley  v.  Wadsworth,  38  Cal.  356,  360  (1862),  there  was  a  notice 
to  the  owner  after  the  abandonment  of  the  contract  by  tlie  contractor, 
and  after  he  had  been  paid  more  than  he  was  entitled  to  receive,  and 
the  owner  completed  the  house  at  a  greater  expense  than  the  original 
contract  price;  held,  that  the  subclaimants  had  no  lien:  See  Quale  v. 
Moon,  48  Cal.  478,  481,  482. 

"  Clark  V.  Collier,  100  Cal.  256,  258,  34  Pac.  Rep.  677. 

See  Humboldt  L.  M.  Co.  v.  Crisp,  146  Cal.  686,  2  Am.  &  Eng.  Ann. 
Cas.  811,  81  Pac.  Rep.  30,  106  Am.  St.  Rep.  75. 

See    §  16,    and    §§  188    et    seq.,    ante. 

As  to  destruction  o£  bnilding  before  completed,  and  liability  of  land 
to  lien,  see  note  2  Am.  &  Eng.  Ann.  Cas.  689. 


485  IMPROVEMENT    CAUSED   BY   WHOM.  §§  532.  533 

liens  thereon,  created  by  its  construction  in  good  faith, 
without  knowledge  that  the  erection  of  the  building  was 
unauthorized,  or  he  should  not  be  allowed  to  retain  it  as  a 
fixture  to  his  land  unencumbered. °^ 

§  532.  Same.  Application  of  payments  by  subclaimants. 
A  subclaimant  cannot  legally  apply  any  portion  of  the 
moneys  paid  by  the  owner  to  extinguish  an  obligation  aris- 
ing out  of  general  dealings  between  himself  and  the  con- 
tractor, unconnected  with  the  contract  under  which  he 
furnished  the  materials  or  labor;  for,  if  this  could  be  done, 
it  would  have  the  effect  of  subjecting  the  owner  to  the  pay- 
ment of  other  debts  between  the  contractor  and  his 
employees,   outside   of  his   building   contract.^" 

?  533.  Same.  Payment  of  orders  of  contractor.  Splitting 
demands.  The  owner  is  not  required  to  pay  orders  given  on 
him  in  amounts  which  he  has  not  contracted  to  pay,  nor  for 
a  demand  of  the  contractor,  split  in  favor  of  third  persons.^^ 
But  if  the  amount  is  owing,  and  he  has  agreed  to  pay  them, 
he  is  obliged,  generally,  as  against  the  contractor  at  least,  to 
pay  such  orders  in  favor  of  lien-holders ;  for  they  operate  as 
an  assignment  of  the  demand  of  the  contractor,  pro  tanto, 
and  if  the  owner  refuses  to  pay  the  orders,  he  will  not  be 

==  Linck  V.  Meikeljohn,  2  Cal.  App.  506,  508.  84  Pac.  Rep.  309. 

See  §§  16,  188  et  seq.,  and  §  530,  ante. 

'*  Goss  V.  Strelitz,  54  Cal.  640,  645  (concurring  opinion  of  McKee,  J.). 

See  "Payments,"  §§  251  et  seq.,  ante. 

Montana.  Moneys  paid  by  owner  to  his  laborer  may  be  apportioned 
by  the  latter  to  an  account  for  which  he  has  no  lien,  if  it  is  not  other- 
wise appropriated  by  the  former:    Christnot  v.  Montana  G.  &  S.  M.  Co., 

I  Mont.  44. 

Nevada.     Same  principle  as  Montana  case,  supra:    Capron  v.  Strout, 

II  Nev.  304. 

••'  Clancy  v.  Plover,  107  Cal.  272,  275,  40  Pac.  Rep.  394,  distinsuiNliing 
Adams  v.  Burbank,  103  Cal.  646,  37  Pac.  Rep.  640.  See  Grain  v.  Aldrich, 
38  Cal.  514,  99  Am.  Dec.  423;  Thomas  v.  Rock  Island  G.  &  S.  M.  Co.,  54 
Cal.  578:  Kansas  City,  M.  &  B.  R.  Co.  v.  Robertson,  109  Ala.  296,  299, 
19  So.  Rep.  432;  Belt  v.  Poppleton,  11  Oreg.  201,  203,  3  Pac.  Rep.  27 
(assignment  of  part  of  award). 

See  notes  57  Am.  Dec.  441;  2  Am.  St.  Rep.  473;  21  Am.  St.  Rep.  716. 

DiMtinsuislied  in  Noyes  v.  Barnard,  63  Fed.  Rep.  788  (this  was  an 
action  by  a  .surviving  partner  to  recover  for  work  done  by  himself). 

On  acceptance  «r  consent,  rule  is  otherwise:  See  Welch  v.  Mayer, 
4  Colo.  App.  440,  36  Pac.  Rep.  613;  Little  v.  City  of  Portland,  26  Oreg. 
235,  243,  37  Pac.  Rep.  911. 


§  534  mechanics'  liens.  486 

permitted  to  recover  from  the  contractor  the  costs  incurred 
by  reason  of  his  refusal;  nor  to  use  the  same  as  a  basis  for 
set-off.s« 

Under  a  contract  to  build  a  schoolhouse,  whereby  the  con- 
tractor was  to  receive  the  balance  due  after  paying  all  claims 
for  materials,  the  contractor  cannot  complain  of  a  judgment 
properly  rendered  against  him  in  favor  of  material-men  to 
whom  he  had  given  orders  on  the  school  trustees,  who 
refused  payment,  merely  because  the  amount  is  made  by 
the  judgment  a  lien  and  charge  upon  the  unpaid  moneys  in 
the  hands  of  the  school  district  and  its  trustees,  from  which 
no  appeal  is  taken  by  them.^'^ 

§  534.  Same.  Orders  on  owner's  mortgagee.  Destruction 
of  building.  Where,  from  the  terms  of  an  order  given  to 
his  material-man  by  a  contractor  upon  a  mortgagee,  which 
was  accepted,  payable  upon  the  completion  of  the  building, 

»*  Adams  v.  Burbank,  103  Cal.  646,  650,  37  Pac.  Rep.  640.  See  Clancy 
V.  Plover,  107  Cal.  272,  275,  40  Pac.  Rep.  394. 

See  "  Costs,"  §§  935  et  seq.,  post. 

Montana.  A  duty  also  rests  on  the  owner,  —  that  of  paying  the 
amount  he  agreed  to  pay  for  the  work  done, — and  when  he  wrong- 
fully refuses  to  pay  the  contractor,  or  to  honor  his  orders  for  the  pay- 
ment of  the  workmen,  thereby  causing  liens  to  be  filed,  or  wrongfully 
contests  the  actions  brought  for  the  foreclosure  of  the  liens,  he  cannot 
set  off  the  costs  thus  caused  by  his  own  wrongful  act  against  the  claim 
of  the  contractor  or  his  assignee.  Whether  it  was  tlie  duty  of  the 
defendants,  as  a  matter  of  law,  to  honor  these  orders,  is  immaterial. 
The  orders  served  to  give  them  notice  of  these  outstanding  claims 
against  their  property.  They  were  also  an  acknowledgment  by  the 
contractor  that  the  amounts  were  correct.  The  danger  of  paying 
spurious  claims  or  of  making  volunteer  payment  was  thus  avoided. 
Their  payment  would  have  been  a  proper  charge  or  counterclaim 
against  the  contractor,  and  a  proper  set-off  against  tlie  demand  of  his 
assignee.  The  inhibition  against  "splitting  demands"  does  not  apply. 
The  law  splits  the  demand  when  it  authorizes  the  workman  to  file  a 
lien  for  the  amount  due  him,  irrespective  of  whether  or  not  this 
amount  corresponds  witli  the  original  contract  price.  If  the  owner 
chooses,  at  his  own  instance,  to  contest  these  labor  claims  after  they 
are  acknowledged  by  tlie  party  personally  liable,  and  is  defeated,  he 
cannot  set  off  the  cost  of  his  own  contest  against  the  demand  of  tlie 
contractor:  Boucher  v.  Powers,  29  Mont.  342,  74  Pac.  Rep.  942. 

School  (li.>4trict  cannot  maintain  action  in  equity  a!?ain.st  a.S8i^nee 
of  an  order  to  cancel  tlie  order  and  enjoin  its  payment  on  account  of 
increased  expense  or  non-payment  of  claims,  caused  by  a  breach  of 
the  contract,  where  the  contractor  has  given  a  bond,  there  being  an 
adequate  remedy  upon  the  bond:  Long  Beach  S.  Dist.  v.  Lutge,  129 
Cal.   409,   415,   62  Pac.  Rep.   36. 

"»  Simpson  v.  Gamache.  134  Cal.  216,  219,  66  Pac.  Rep.  222. 


487  IMPROVEMENT    CAUSED   BY    WHOM.  §  535 

and  from  the  acceptance  of  the  order  and  the  circumstances 
surrounding  the  acceptance  it  is  apparent  that  the  intention 
of  the  parties  Avas,  that  the  mortgagee  should  retain  for  the 
material-men,  out  of  moneys  in  its  hands  belonging  to  the 
o-\vner  of  the  building,  and  due  from  him  to  the  contractor, 
enough  to  pay  the  amount  of  the  contractor's  indebtedness 
to  the  material-men,  evidenced  by  an  order,  there  being  no 
existing  indebtedness  on  the  part  of  the  mortgagee,  and  it 
having  no  money  or  property  of  the  contractor,  but  it 
simply  having  a  mortgage  on  the  owner's  property  to  secure 
legal  advances  for  the  owner  on  account  of  the  building,  it 
can  legally  advance  for  the  owner  to  the  contractor  only  such 
moneys  as  may  be  due  from  such  owner  to  the  contractor  on 
account  of  the  building,  and  even  if  it  has  other  monej's  and 
securities  in  its  hands  belonging  to  the  owner  of  the  build- 
ing, such  moneys  and  securities  are  the  property  of  the 
owner,  and  cannot  legally  be  applied  in  payment  of  the 
contractor's  debts,  in  the  absence  of  any  liability  on  the  part 
of  the  owner  to  the  contractor,  or  some  authorization  from 
such  owner  to  so  apply  them.  If  the  contractor  fails  to 
complete  the  building,  the  amounts  stipulated  by  the  build- 
ing contract  to  be  paid  upon  such  completion  never  have 
become  due  from  the  owner  to  the  contractor,  notwith- 
standing a  destruction  of  the  building  by  fire,  without  the 
contractor's  fault,  and  therefore  there  is  no  money  in  the 
mortgagee's  hands  applicable  to  the  contractor's  debt  to  the 
material-men. ®° 

§  535,  Same.  Voluntary  payment  of  contractor's  debts. 
The  owner  is  generally  not  under  obligation  to  the  contractor 
to  pay  his  debts  to  the  material-men  without  suit,  or  to 
anticipate  that  the  contractor  will  have  no  defense  against 
them  in  a  suit  brought  by  them  to  enforce  and  foreclose  their 
liens.  He  cannot  be  presumed  to  know  whether  or  not  the 
contractor  has  any  valid  defense  to  the  foreclosure  suits.   If 

«»  Hogan  V.  Globe  M.  B.  &  L.  Assoc,  140  Cal.  610,  613,  74  Pac.  Rep. 
153. 

Advanoes  niii.st  be  uroperly  iiiiiile:    See  4  Am.  &  Eng.  Ann.  Cas.  615. 

Am  to  destruotion  of  iMiililiiiK  Itoforo  coiii|>letion.  and  its  effect  on 
mechanics'  lienH,  see  note  2  Am.  &  Eng.  Ann.  Cas.  689. 


§  535  mechanics'  liens.  488 

the  owner  pays  tlie  demands,  on  which  the  material-men  had 
filed  liens,  without  suit,  and  without  the  request  of  the  con- 
tractor, the  owner  does  so  at  the  peril  of  being  adjudged  to 
have  paid  them  as  a  mere  volunteer  to  the  extent  to  which 
the  demands  paid  may  not  jjrove  to  be  valid  liens  upon  his 
propert}^,  and  to  this  extent  he  will  have  no  recourse  upon 
the  contractor  for  indemnity. ^^ 

The  burden  of  proving  that  the  demands  paid  by  him  were 
valid  debts  of  the  plaintiff  secured  by  valid  liens  upon  de- 
fendant's property,  or  that  he  had  paid  thereon,  at  the  con- 
tractor's request,  would,  moreover,  be  imposed  upon  him.  He 
is  under  no  obligation  to  the  contractor  to  pay  the  con- 
tractor's debts  to  the  material-men.*^- 

"  Substantially  in  the  language  of  Covell  v.  Washburn,  91  Cal.  560, 
563,  27  Pac.  Rep.  859;  Wilson  v.  Samuels,  100  Cal.  514,  519,  35  Pac. 
Rep.  148. 

Owner  has  uo  rig-ht  to  set  up  his  opinion  as  to  the  legality  of  lien 

when  he  knows  that  the  contractor  or  his  assignees  claimed  the  right 
to  contest,  without  taking  a  chance  of  the  correctness  of  that  opinion: 
Wilson  V.  Nugent,  125  Cal.  280,  284,  57  Pac.  Rep.  1008. 

Owner  at  his  own  risk  pays  subclainiants,  for  he  thus  determines 
the  amount  and  justness  of  their  claims:  Stimson  v.  Dunham,  C,  H.  Co., 
146  Cal.  281,  283,  79  Pac.  Rep.  968. 

Owner  is  not  lial>le  to  contractor,  if,  after  an  order  of  the  contractor 
to  pay  subclaimants,  the  owner  voluntarily  pays  a  valid  judgment 
against  the  contractor  in  favor  of  such  claimants:  Simpson  v. 
Gamache,  134  Cal.  216,  66  Pac.  Rep.  222. 

See  §  522,  ante. 

Surety  on  contractor's  bond.  Liability  for  attorneys'  fees,  etc.  In 
Alcatraz  M.  H.  Assoc,  v.  United  States  F.  &  G.  Co.,  3  Cal.  App.  338,  85 
Pac.  Rep.  156,  158,  it  was  held  that  a  surety  on  a  contractor's  bond 
was  not  liable  for  expenses  incurred  by  the  owner  for  the  services  of 
attorneys  and  other  expenses  in  suits  for  the  enforcement  of  liens, 
where,  under  the  contract,  he  was  not  required  to  pay  twenty-five  per 
cent  of  the  contract  price  until  thirty-five  days  after  the  completion 
of  the  building,  during  which  time  he  could  ascertain  the  li«n  claim- 
ants and  pay  them  the  sum  unpaid,  on  the  theory  that  the  owner  knew 
or  could  have  ascertained  the  amount  of  liens  claimed  thereon,  and 
that  he  knew,  too,  that  the  amount  of  the  unpaid  portion  of  the  con- 
tract price  was  the  limit  for  which  any  liens  could  be  enforced,  and 
where,  instead  of  appropriating  the  money,  the  owner  chose  to  await 
action  for  their  recovery,  and  thereby  incurred  additional  expense,  the 
surety  was  not  liable  for  such  expense,  but,  as  above  shown,  no  such 
obligation  rests  upon  the  owner. 

Colorado.  See  Mouat  L.  Co.  v.  Gilpin,  4  Colo.  App.  534,  537,  36  Pac. 
Rep.  892. 

"-  Covell  V.  Washburn,  91  Cal.  560,  563,  27  Pac.  Rep.  859;  Wilson  v. 
Samuels,  100  Cal.  514,  519,  35  Pac.  Rep.  148.  See  Macomber  v,  Bigelow, 
123  Cal.  532,  56  Pac.  Rep.  449. 

Colorado.  See  Schradsky  v.  Dunklefe,  9  Colo.  App.  394,  397,  48  Pac. 
Rep.   066. 


489  IMPROVEMENT    CAUSED   BY   WHOM.  §  536 

His  only  obligation  to  the  contractor  is  to  pay  him  so  much 
as  the  labor  he  has  performed  and  the  materials  he  has  fur- 
nished and  used  on  his  house  are  reasonably  worth.  Against 
this  obligation  he  is  entitled  to  set  off  the  contractor's  obliga- 
tion to  indemnify  him  for  all  that  he  has  been  compelled  to 
pay  to  relieve  his  property  from  the  liens  thereon  to  secure 
the  contractor's  debts,  including  costs  in  the  suits  to  enforce 
these  liens. ^^ 

Failure  to  make  valid  defense.  Where  the  original  con- 
tract is  valid,  and  the  owner  does  not  set  up  a  valid  defense 
upon  the  foreclosure  of  subclaimants'  liens  for  a  larger 
amount  than  that  due  under  the  contract  to  the  contractor, 
and  pays  the  judgment  therefor,  under  stipulation,  as  he  is 
under  no  legal  obligation  to  pay  the  excess,  which  is  merely 
a  debt  of  the  contractor,  he  cannot  recover  such  voluntary 
payment  of  the  excess  from  the  contractor's  surety,  especially 
where  the  contractor  has  not  requested  the  owner  to  pay  it, 
where  the  bond  does  not  extend  to  the  releasing  of  the  build- 
ing from  invalid  liens,  but  covers  only  claims  that  may 
"  accrue  "  against  the  building  by  reason  of  the  erection ;  for 
claims  which  could  not  be  legally  enforced  against  the  build- 
ing cannot  be  said  to  have  accrued  against  it.*^^ 

§  536.  Same.  Guaranty  not  a  prohibited  payment.  Where 
the  owner,  at  the  request  of  the  contractor,  guarantees  or 
assumes  the  latter's  accounts  with  his  subclaimants,  for  the 
material  necessary  for  completion  of  the  structure,  the 
amount  to  be  deducted  from  the  completion  payment  when  it 
becomes  due  to  the  contractor,  and  the  owner  pays  the 
amount  after  such  payment  becomes  due,  the  guaranty  is  not 
equivalent  to  a  premature  payment  denounced  by  section 
eleven  hundred  and  eighty-four,®*  as  against  general  credi- 

•=  Coven  V.  Washburn,  91  Cal.  560,  563,  27  Pac.  Rep.  859;  Wilson  v. 
Samuels,  100  Cal.  514,  519,  35  Pac.  Rep.  148.  See  Macomber  v.  Bigelow, 
123  Cal.  532,  56  Pac.  Rep.  449. 

Colorado.  See  Schradsky  v.  Dunklee,  9  Colo.  App.  394,  397,  48  Pac 
Rep.  666. 

«  Brill  V.  De  Turk,  130  Cal.  241,  244,  62  Pac.  Rep.  462. 

Approved  in  Stimson  v.  Dunham,  C.  H.  Co.,  146  Cal.  280,  284,  79  Pac. 
Rep.   968. 

"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1184. 


§  537  mechanics'  liens.  490 

tors,  or  those  who  had  no  lien  upon  the  property,  by  filing  a 
claim  therefor,  or  who  had  given  no  notice  to  withhold  pay- 
ments.*'^ 

§  537.  Same.  Owner  as  stakeholder.  After  the  comple- 
tion of  a  valid  contract,  the  owner  holds  the  reserved  money 
for  payment  to  the  contractor  and  lien  claimants,  as  the  one 
or  the  other  may  prove  to  be  entitled  to  it.  If  there  be  a  con- 
test between  them  in  regard  to  the  money,  it  is  a  matter  for 
them  to  settle  between  themselves,  and  at  their  own  expense, 
with  which  the  owner  has  no  concern.  In  such  a  case  the 
owner  may,  and  should,  deposit  the  money  in  court  and  allow 
the  contestants  then  to  have  their  rights  determined.  Where 
there  is  no  contract  between  the  contractor  and  the  lien- 
holders,  and  the  former,  by  his  default,  admits  that  the  latter 

«'  In  Hamilton  v.  Christensen,  148  Cal.  729,  734,  84  Pac.  Rep.  200,  the 
court  say:  "In  return  for  the  contractor's  promise  to  reimburse  him 
out  of  the  completion  payment  when  it  became  due,  he  guaranteed  or 
assuined  the  contractor's  responsibility  for  the  payment  of  certain 
material  necessary  for  the  completion  of  his  house.  When  the  com- 
pletion payment  became  due  (no  rights  by  way  of  liens  or  notice  to 
withhold  having  intervened),  he  would  have  been  at  perfect  liberty  to 
pay  this  money  to  the  contractor.  Indeed,  no  one  will  dispute  but 
that,  still  holding  the  money,  he  could  have  gone  with  the  contractor 
and  paid  it  over  himself  to  the  material-men,  thus  to  make  sure  that 
the  obligations  were  canceled.  Or,  again,  no  one  would  question  his 
right  to  have  paid  over  the  money  to  the  contractor,  and  immediately 
to  have  received  back  from  him  the  amount  of  these  obligations.  But, 
because  he  did  not  adopt  one  of  these  roundabout  ways  of  accomplish- 
ing the  same  result,  but,  instead,  himself  paid  the  amount  of  the 
funds  due  the  contractor  and  deducted  the  amount  so  paid,  it  is  con- 
tended that,  having  done  this,  in  contemplation  of  his  obligations 
previously  assumed,  he  must  pay  the  money  twice.  This,  instead  of 
being  a  construction  of  a  penal  statute  in  favor  of  the  owner,  is  a 
tightly  stretched  and  extremely  attenuated  construction  against  him. 
If,  before  he  actually  made  these  payments  out  of  this  fund  after  it 
became  due,  demands  to  witlihold  and  claims  of  liens  aggregating  two 
thousand  dollars  had  been  served  and  filed,  he  then,  in  the  eye  of  the 
law,  would  have  stood  compelled  to  sequester  this  money  and  hold  it 
to  meet  these  demands,  and  thus  might  have  been  obliged,  under  his 
guaranty  or  obligation,  to  pay  out  of  his  own  pocket  the  amounts 
which  he  had  assumed  on  behalf  of  the  contractor.  That  was  the  only 
risk  which  he  ran;  but  as  in  this  case  a  demand  amounting  to  only 
five  hundred  dollars  had  been  served  upon  him,  there  was  still  fifteen 
hundred  dollars  to  be  devoted  to  the  extinguishment  of  these  obliga- 
tions. Finally,  upon  this  point  it  may  be  said  that,  as  this  penal 
clause  of  the  statute,  is  to  be  constrvied  in  favor  of  the  owner,  the 
question  may  be  taken  as  determined  in  the  owner's  favor  under  the 
finding  of  the  court  that  the  payments  were  actually  made  after  the 
completion  payment  was  due." 


491  IMPROVEMENT    CAUSED   BY   WHOM.  §  538 

are  entitled  to  it,  the  owner  should  not  protract  the  litiga- 
tion.*"* 

§  538.  Same.  Liability  for  costs  and  interest.  Inter- 
pleader. Where,  by  force  of  the  statute,  the  owner  is  pre- 
vented from  paying  the  amount  for  which  he  was  liable  to 
the  contractor,  after  the  service  of  notices  of  lien  claimants 
on  the  owner,  the  latter  is  not  liable  for  interest ;  ®'  and  a 
demand  for  extras  does  not  draw  interest  until  the  amount  is 
ascertained  by  the  judgment  of  the  court ;  but  where  he 
contests  the  right  of  the  contractor  and  his  subclaimants  to 
the  fund,  he  may  be  held  liable  for  costs."^ 

Where  notices  are  served  to  an  amount  in  excess  of  the 
contract  price,  the  owner  cannot  be  held  beyond  the  contract 
price,  when  the  contract  is  valid,  and  charged  with  additional 
costs,  created  or  incurred  by  the  contractor.^^ 

Owner  may  come  into  court  and  bring  in  all  interested 
parties,  so  that  one  decree  may  settle  all  rights,  and  may  ask 
to  be  permitted  to  pay  into  court  the  amount  due  by  him  as 

««  De  Camp  L.  Co.  v.  Tolhurst,  99  Cal.  631,  635,  34  Pac.  Rep.  438. 

See  '■  Decree,"  §  911,  post. 

Oregon.  Duty  of  owner  before  expiration  of  thirty  days  after  com- 
pletion of  building  to  see  to  it  that  payments  to  contractors  were  dis- 
tributed among  sublien  claimants:  Hughes  v.  Lansing,  34  Oreg.  118,  55 
Pac.  Rep.  95,  97,   75  Am.  St.  Rep.  574    (under  Hill's  Code,  §§  3678,  3679). 

Depo»)it  with  county  clerk  under  act  o(  1874  optional:  Whittier  v. 
Blakely,  13  Oreg.  546,  11  Pac.  Rep.  305. 

"  Stimson  v.  Dunham,  C,  H.  Co.,  146  Cal.  281,  283,  79  Pac.  Rep.  968. 
See  Easterbrook  v.  Farquharson,  110  Cal.  316,  42  Pac.  Rep.  811. 

"*  Contest  by  owner.  Co.sts  and  attorneys'  fees.  "  At  the  commence- 
ment of  the  action,  he  [the  owner]  could  have  tendered  and  paid  into 
court  the  amount  then  unpaid  of  his  liability  to  the  contractor,  and 
thereby  discharged  himself  of  further  liability;  but.  Instead  thereof, 
he  contested  the  right,  not  only  of  the  lien  claimants,  but  also  of  the 
contractor,  to  any  portion  of  said  unpaid  amount,  and  necessitated 
the  litigation  which  followed.  The  court,  therefore,  did  not  err  in  re- 
quiring the  payment  of  the  costs  and  attorneys'  fees  in  addition  to  the 
amount  which  he  had  agreed  to  pay  the  contractor":  Union  L.  Co.  v. 
Simon  (Cal.  App.,  March  13,  1906),  89  Pac.  Rep.  1077,  1081. 

Colorado.  Allowance  of  interest  on  claims:  See  Joralmon  v. 
McPhee,  31  Colo.   26,   71  Pac.  Rep.  419,   423. 

Montana.  It  has  been  held  in  this  jurisdiction  that  where  the  con- 
tractor gives  to  his  subclaimants  orders  on  the  owner,  which  the  latter 
declines  to  pay  until  liens  based  upon  the  claims  are  merged  in  a  judg- 
ment, the  costs  of  the  foreclosure  of  the  liens  cannot  be  set  off  by  him 
in  an  action  by  the  contractor  to  assert  a  lien  for  the  contract  price: 
Boucher  v.  Powers,  29  Mont.  342,  74  Pac.  Rep.  942. 

•»  Stimson  v.  Dunham,  C,  H.  Co.,  146  Cal.  281,  283,  79  Pac.  Rep.  968. 


§  539  mechanics'  liens.  492 

soon  as  the  sum  due  for  extras  could  be  ascertained,  where  no 
objection  to  such  pa^'ment  is  raised.''^' 

Where  no  tender  of  amount  due,  or  oifer  to  allow  judg- 
ment for  any  sum,  is  made  by  the  owner,  costs  and  attorneys' 
fees,  provided  for  in  section  eleven  hundred  and  ninety-five,^^ 
may  be  alloAved  to  the  party  establishing  his  lienJ^ 

§  539,  Same.  Personal  liability.  The  "  employer,"  whether 
the  owner  of  the  land  or  not,  is  liable  for  the  full  value  of  the 
labor  or  materials  to  the  person  with  whom  he  contracts;  '^ 

'»  Stimson  v.  Dunham,  C,  H.  Co.,  146  Cal.  281.  283,  79  Pac.  Rep.  968. 

Payment  into  court.  Interest  and  costs.  Under  a  valid  contract, 
where  the  owner  pays  the  fund  into  court,  he  is  not  liable  for  interest 
or  costs,  although  an  issue  is  made  as  to  the  validity  of  the  contract, 
which  was  decided  in  favor  of  the  owner:  Hooper  v.  Fletcher,  145 
Cal.   375,   379,   79  Pac.  Rep.  418. 

Duty  to  deposit  money  in  court:  "Wilson  v.  Nugent,  125  Cal.  280,  284, 
57  Pac.  Rep.  1008. 

"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1195. 

"  Linck  V.  Johnson,  134  Cal.  xix,  66  Pac.  Rep.  674. 

"  Central  L.  &  M.  Co.  v.  Center,  107  Cal.  193,  197,  40  Pac.  Rep.  334. 

See,  for  instance,  Kuhlman  v.  Burns,  117  Cal.  469,  49  Pac.  Rep.  585. 

See  Kerr's  Cyc.  Code  Civ.  Proc,  S  1197. 

Creditors,  ^vho  are  not  found  to  be  lien-Iiolders,  have  no  recourse 
again.st  the  owner's  property,  nor  a  personal  judgment  against  him, 
unless  they  are  in  privity  with  him:  Kennedy-Shaw  L.  Co.  v.  Priet,  115 
Cal.  98,  99,  46  Pac.  Rep.  903.  See  s.  c.  113  Cal.  291,  293,  45  Pac.  Rep. 
336;  Kennedy-Shaw  L.  Co.  v.  Dusenbery,  116  Cal.  124,  126,  47  Pac.  Rep. 
1008;  Santa  Clara  V.  M.  &  L.  Co.  v.  Williams  (Cal.,  Dec.  8,  1892),  31 
Pac.  Rep.  1128. 

See  §§  315  at  seq.,  ante. 

Liability  of  board  of  education  for  breach  of  contract:  See  Morgan 
V.  Board  of  Education,  136  Cal.  245,  246,  68  Pac.  Rep.   703. 

Liability  of  owner  on  contract  to  pay  for  work  in  instalments,  upon 
failing  to  pay  one  instalment,  whole  contract  price  not  due:  See  Flinn 
V.  Mowry,  131  Cal.  481,  486,  63  Pac.  Rep.  724,  1006. 

Colorado.  Where  the  owner  agrees  also  to  pay  the  claims  of  the 
contractor's  subclaimants  if  materials  or  labor  are  performed  upon  or 
for  the  building,  the  owner  is  personally  liable:  Harris  v.  Harris,  18 
Colo.  App.  34,  69  Pac.  Rep.  309. 

Personal  judgement  agrainst  the  owner  for  work  performed  upon 
building,  under  owner's  promise  to  pay  the  claimant  therefor,  is  not 
affected  by  the  failure  of  the  court  to  make  a  final  disposition  of  the 
case  against  the  contractor,  who  is  also  a  defendant:  Harris  v.  Harris, 
18  Colo.  App.  34,  69  Pac.  Rep.  309. 

Oregon.  Where  the  defendant  is  a  party  to 'the  contract,  the  claim- 
ant may  have  personal  judgment  for  any  deficiency,  notwithstanding 
recitals  in  the  judgment  of  the  amounts  found  to  be  due:  Watson  v. 
Noonday  M.  Co.,  37  Oreg.  287,  55  Pac.  Rep.  867,  58  Id.  36,  60  Id.  994 
(under  Hill's  Ann.  Laws,  §  3669). 

AVyoming.  Personal  liability  to  owner's  contractor:  W^yman  v. 
Quayle,  9  W^yo.  326,  63  Pac.  Rep.  988. 


493  IMPROVEMENT    CAUSED    BY    WHOM.  §  539 

but,  since  there  is  no  privitj^  between  him  and  subclaimants/* 
aside  from  his  liability  by  notice,'"  he  is  not  personally  liable 
for  the  debts  of  the  contractor  to  them,  even  if  they  have 
liens  upon  the  property,  whether  the  original  contract  is 
valid  "^  or  void  J^ 

The  statute  does  not  create  a  contractual  relation,  nor 
attempt  to  create  one,  which  does  not  otherwise  exist  between 
the  owner  and  the  subcontractor,  upon  which  a  personal 

">*  Bowen  v.  Aubrey,  22  Cal.  566,  572;  Macomber  v.  Bigelow,  123  Cal. 
532,   56  Pac.  Rep.   449. 

Owner  not  personally  liable:  See  Humboldt  L.  M.  Co.  v.  Crisp,  146 
Cal.  686,  81  Pac.  Rep.  30,  106  Am.  St.  Rep.  75,  2  Am.  &  Eng.  Ann.  Cas. 
811. 

See  §§  315  et  seq.,  ante. 

Colorado.  Estey  v.  Halleck  &  H.  L.  Co..  4  Colo.  App.  165,  34  Pac. 
Rep.  1114;  Sayre-Newton  L.  Co.  v.  Park,  4  Colo.  App.  482,  485,  36  Pac. 
Rep.    445    (1889). 

'•■'  See  §  547,  post. 

Colorado.  The  lien  attaches  only  by  virtue  of  the  work  being 
done  or  materials  furnished  under  a  contract,  express  or  implied,  with 
the  owner  of  the  property  upon  which  the  lien  is  claimed,  and  tlie 
burden  of  proving  such  contract  rests  upon  the  party  asserting  it: 
Davidson  v.  Jennings,  27  Colo.  187,  60  Pac.  Rep.  354,  48  L.  R.  A.  340, 
83  Am.  St.  Rep.   4  9. 

Hawaii.  Owner,  personally,  not  liable  to  subclaimants;  Allen  v. 
Reist,   16  Hawn.  23. 

Montana.  Owner,  personally,  not  liable  to  subclaimants:  "Wagner 
V.  St.  Peter's  Hospital,  32  Mont.   206,   79  Pac.  Rep.   1054,   1055. 

New  Mexico.      See  Pearce  v.   Albright,   76  Pac.  Rep.   286. 

■«  Adams  v.  Burbank,  103  Cal.  646,  650,  37  Pac.  Rep.  640;  Gibson  v. 
Wheeler,  110  Cab  243,  246,  42  Pac.  Rep.  810.  See  Van  Winkle  v.  Stow, 
23  Cal.  458,  459;  Barber  v.  Reynolds,  44  Cal.  519,  537  (1862);  Eaton  v. 
Rocca,  75  Cal.  93,  97,   16  Pac.  Rep.  529;  Kennedy-Shaw  L.  Co.  v.  Priet. 

115  Cal.   98,  99,   46  Pac.   Rep.   903;   Kennedy-Shaw   L.   Co.   v.   Dusenbery, 

116  Cal.  124,  126,  47  Pac.  Rep.  1008;  Merced  L.  Co.  v.  Bruschi  (con- 
tractor's  material-man),    (Cal.    Sup.,   Nov.    29,    1907). 

Colorado.  Lowrey  v.  Svard,  8  Colo.  App.  357,  46  Pac.  Rep.  619. 
•  "  Covell  V.  Washburn,  91  Cal.  560,  562,  27  Pac.  Rep.  859  (nor  upon 
an  implied  contract);  Southern  Cal.  L.  Co.  v.  Sclimitt,  74  Cal.  625,  627, 
16  Pac.  Rep.  516;  Davies-Henderson  L.  Co.  v.  Gottschalk.  81  Cal.  641, 
647,  22  Pac.  Rep.  860;  Santa  Clara  V.  M.  &  L.  Co.  v.  Williams  (Cal., 
Dec.  8,  1892),  31  Pac.  Rep.  1128;  McMenomy  v.  White,  115  Cal.  339,  343, 
47  Pac.  Rep.  109;  Gnekow  v.  Confer  (Cal.),  48  Pac.  Rep.  331;  Mar- 
chant  v.  Hayes,  120  Cal.  137,  139,  52  Pac.  Rep.  154.  See  Stimson  M.  Co. 
V.  Riley  (Cal.,  Dec.  20,  1895),  42  Pac.  Rep.  1072;  Kellogg  v.  Howes,  81 
Cal.  170,  181,  22  Pac.  Rep.  509,  6  L.  R.  A.  588  (concurring  opinion); 
Wood  V.  Oakland  &  B.  R.  T.  Co.,  107  Cal.  500,  502,  40  Pac.  Rep.  806; 
Skym  V.  Weske  Consol.  Co.  (Cal.,  Dec.  18,  1896),  47  Pac.  Rep.  116.  See 
§§  543  et  seq.,  post. 

Colorado.  Liability  of  owner  for  value  of  materials  furnished,  for 
failure  to  record  contract,  as  required  by  statute  (Laws  1893,  ch.  cxvii, 
p.  315,  S§  1,  2):  See  Chicago  L.  Co.  v.  Newcomb,  19  Colo.  App.  265,  74 
Pac,   Rep.   786,   789. 


§  .^0  mechanics'  liens.  494 

action  will  lie.  "  When  the  law,  in  the  contingencies  men- 
tioned in  section  eleven  hundred  and  eighty-three/^  deems 
that  the  labor  is  performed  and  material  furnished  '  at  the 
personal  instance  of  the  owner,'  it  is  simply  for  the  purposes 
of  the  liens  which  it  is  the  object  of  the  statute  to  afford  to 
those  who  perform  labor  or  furnish  material  for  the  con- 
struction of  buildings.  To  accomplish  this  object,  the  statute 
creates,  under  the  circumstances,  bj'  its  own  force  and  vigor, 
such  a  relation  for  a  specific  purpose  —  viz.,  to  uphold  a  lien 
— •  as  wnll  effectuate  that  purpose."  "^ 

Expulsion  of  contractor.  The  owner  is  not  personally 
liable  to  subclaimants  when  he  expels  the  contractor  and 
wrongfully  takes  the  materials  purchased  by  the  contractor 
to  complete  the  contract,  although  he  may  be  liable  to  the 
contractor  for  damages  in  conversion.^" 

Agency.  When  the  person  who  contracts  with  the  owner's 
claimant  is  not  the  agent  of  the  owner,  either  express  or 
ostensible,  the  owner  is  not  personally  liable. ^^  And,  in  the 
absence  of  privity  or  estoppel,  equitable  or  statutory,  as 
heretofore  shown,  the  owner's  property  is  not  subject  to  a 
lien.^- 

§  540,  Same.  Liability  of  owner  or  employer  under  valid 
contract.  This  subject  has  been  considered  from  other  points 
of  view  elsewhere. ^^  It  remains  to  recapitulate  briefly  the 
general  principles  of  the  owner's  liability  under  a  valid  con- 
's Kerr's  Cyc.  Code  Civ.  Proc,  §  1183. 

"  Gnekow  v.  Confer  (Cal.,  March  31,  1897),  48  Pac.  Rep.  331  (void 
contract). 

See  "  General  Nature  of  Lien,"  §  9,  ante. 

*•  Turner  v.  Strenzel,  70  Cal.  28,  31,  11  Pac.  Rep.  389.  The  question 
of  the  owner's  estoppel  was  raised  in  this  case.  An  attempt  was  made 
to  enforce  a  lien,  but  tlie  complaint  failed  to  show  that  anything  was 
due  from  the  owner  to  the  contractor. 

"  Eaton   V.  Rocca,  75   Cal.   93,   97,   16   Pac.   Rep.   529. 

See   "Agency,"   §§572   et  seq.,   post. 

*=  Johnson  v.  Dewey,  36  Cal.  623,  625.  So  of  a  lien  created  by  a 
lessee  in  possession:  Phelps  v.  Maxwell's  Creek  G.  M.  Co.,  49  Cal. 
336,    338. 

See  also   §  547,   post. 

»'  See  "Effect  of  Validity  of  Contract,"  §§315  et  seq.,  ante;  "Lien 
as  Limited  by  Contract,"  §§  452  et  seq.,  ante;  "Liability  of  Public  Cor- 
poration," §§116,  192,  ante;  "Notice  of  Non-liability,"  §§469  et  seq., 
ante;  "Costs,"  §§935  et  seq.,  post;  "Substantial  Non-Compliance  as  to 
Payments,"  §§  269  et  seq.,  ante. 


495  IMPROVEMENT    CAUSED    BY    WHOM.  §  5-iO 

tract.  Under  the  eode,^*  the  rights  of  lien-holders  and  the 
liability  of  the  owner  are,  in  general,  determined  and  con- 
trolled by  the  terms  of  the  valid  original  contract  between 
the  owner  and  the  original  contractor;  and  the  legislature 
cannot  compel  the  owner  to  pay  more  than  he  has  contracted 
to  pay  under  such  valid  contract,*-^  unless  he  has  paid  the 
same  after  being  notified  of  the  claims  of  the  contractor's 
subclaimants  before  payment  to  the  contractor,***^  as  more 
particularly  shown  in  other  parts  of  this  work.^^  And,  gen- 
erally' speaking,  in  the  absence  of  notice  from  the  subcon- 
tractor of  his  claim,  the  payment  by  the  owner  in  conformity 

«<  Ding-ley  v.  Greene,  54  Cal.  333,  336;  Kellogg  v.  Howes,  81  Cal.  170, 
175,  22  Pac.  Rep.  509,  6  L.  R.  A.  588;  Johnson  v.  La  Grave,  102  Cal.  324, 
325,  36  Pac.  Kep.  651;  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  106  Cal.  224, 
233,  39  Pac.  Rep.  758. 

Liikewlse  under  previous  statute.^.  Act  of  1858:  McAlpin  v.  Duncan, 
16  Cal.  126,  128;  Bowen  v.  Aubrey,  22  Cal.  566,  570.  Act  of  1S62: 
Shaver  v.  Murdock,  36  Cal.  293,  298;  Henley  v.  Wadsworth,  38  Cal. 
356,    361. 

*"  Whittier  v.  Wilbur,  48  Cal.  175,  177;  Kellogg  v.  Howes,  81  Cal.  170, 
177,  22  Pac.  Rep.  509,  6  L.  R.  A.  588.  See  Wilson  v.  Barnard,  67  Cal. 
422,  423,  7  Pac.  Rep.  845.  See  Gibbs  v.  Tally,  133  Cal.  373,  378,  65  Pac. 
Rep.  970,  60  L.  R.  A.  815. 

See  §§  34  et  seq.,  ante. 

Abandonment:  See  McDonald  v.  Hayes,  132  Cal.  490,  494,  64  Pac. 
Rep.   850. 

See   §§  358   et   seq.,   ante. 

Hawaii.  The  owner  may  protect  himself  from  liability  beyond  the 
contract  price  by  employing  only  such  contractors  as  are  financially 
responsible,  or  by  withholding  from  them  such  part  of  the  contract 
price  as  may  be  sufficient  to  satisfy  liens,  or  by  requiring  them  to 
give  bonds  for  the  delivery  of  the  property  free  from  liens,  or  by 
other  means:    Allen  v.   Redward,   10  Hawn.   151,   157. 

"«  Kellogg  V.  Howes,  81  Cal.  170,  175,  177,  22  Pac.  Rep.  509,  6  L.  R.  A. 
688. 

Subclaimants  cannot  acquire  any  riK'lits  af^uinst  tbe  owner  in  viola- 
tion of  the  terms  of  tlie  original  valid  contract:  \Valsli  v.  McMenomy, 
74  Cal.  356,  359,   16  Pac.  Rep.   17;    Bowen  v.  Aubrey,   22  Cal.   566,   568. 

See  §  315,  ante. 

Colorado.  The  right  of  the  material-man  to  maintain  a  lien  against 
the  property  depends  entirely  upon  a  contract,  express  or  implied, 
with  the  owner  of  tlie  realty,  or  an  agreement  between  the  owner 
and  a  contractor,  under  whom  he  can  show  a  derivative  right:  Groth 
v.   Stall],    3   Colo.    App.    8,    30   Pac.    Rep.    1051    (1889). 

Xevada.  Contra:  See  Lonkey  v.  Cook,  15  Nev.  58;  Hunter  v. 
Truckee  Lodge,   14  Nev.   24    (1875). 

See  §S)  452  et  seq.,  ante. 

Utah.  See  Morrison  v.  W'illard,  17  Utah  306,  53  Pac.  Rep.  832,  70 
Am.  St.  Rep.  784;  Morrison  v.  Inter-Mountain  S.  Co.,  14  Utah  201,  46 
Pac.   Rep.    1104. 

"  Kee   §§  547  et  seq.,   post. 


§  541  mechanics'  liens.  496 

to  the  contract  will  relieve  him,  to  the  extent  of  such  pay- 
ment, from  any  claim  or  lien  of  the  subcontractor.®^ 

Unless  the  notice  prescribed  by  statute  ^^  is  given  in  time 
to  intercept  moneys  in  the  hands  of  the  owner,  or  a  claim  of 
lien  is  duly  filed,  payment  to  the  contractor  in  accordance 
with  the  terms  of  a  non-statutory  original  contract  will  oper- 
ate as  a  complete  discharge,  so  far  as  the  owner  is  con- 
cerned.^" 

Portion  not  due  until  building  completed.  When  a  con- 
tract is  made  by  the  owner  for  the  construction  of  a  building, 
by  the  terms  of  which  a  portion  of  the  contract  price  is  not 
due  until  after  the  building  is  completed,  and  when  materials 
have  been  furnished  for  and  used  in  the  construction,  pre- 
sumably in  view  of  such  contract,  and  when,  thereafter,  and 
with  notice  thereof,  the  owner  pays  his  contractor  before  the 
building  is  completed,  and  before  the  money  is  due,  he  is 
liable  to  subclaimants  to  the  extent  of  the  money  thus  pre- 
maturely paid.  To  hold  otherwise  would  be  to  enable  the 
owner  to  practise  a  fraud,  and  the  contract,  instead  of  being 
a  chart  for  the  direction  of  subclaimants,  would  become  a 
delusion  and  a  fraud. ^^ 

§  541.  Same.  Payment  to  subclaimants.  Valid  contract. 
Last  payment.  In  the  case  of  a  statutory  original  contract, 
it  was  not  intended  that  lien  claimants  should  be  compelled 
to  rely  on  the  good  faith  and  honesty  of  the  owner  or  con- 
tractor in  devoting  the  last  payment  of  twenty-five  per  cent 
to  the  payment  of  their  claims,  but  that  they  should  have  the 
security  afforded  by  a  lien  on  the  property  until  the  claims 

*«  Kellogg-  V.  Howes,  81  Cal.  170,  175,  22  Pac.  Rep.  509,  6  L.  R.  A. 
588,   11   Pac.  Coast  L.  J.   589. 

See  "Notice,"  §§547  et  seq.,  post. 

»»  Kerr's  Cyc.  Code  Civ.  Proc,  §  1184. 

^  Kerckhoff-Cuzner  M.  &  L.  Co.  v.  Cummings,  86  Cal.  22,  24  Pac. 
Rep.    814. 

Utah.  See  Morrison  v.  Willard,  17  Utah  306,  53  Pac.  Rep.  832,  70 
Am.  St.  Rep.  784. 

"  Walsh  V.  McMenomy,  74  Cal.  356,  359,  16  Pac  Rep.  17.  See  Valley 
L.   Co.  V.  Struck,   146   Cal.   266,   80  Pac.   Rep.   405. 

Oregon.  Liability  of  owner  for  payments  made  by  him,  unless 
distributed  among  persons  entitled  to  a  lien,  under  Hill's  Ann.  Laws, 
§  3678:  See  Watson  v.  Noonday  M.  Co.,  37  Oreg.  287,  60  Pac.  Rep. 
994,  996. 


497  IMPROVEMENT    CAUSED    BY    WHOM.  §  542 

were  paid;  and  there  is  nothing  in  the  statute  to  the  effect 
that  the  owner  shall  be  exonerated  from  the  effect  of  his 
violation  of  the  statute  upon  showing  that  he  has  paid  out 
the  entire  contract  price,  pro  rata,  to  the  claimants  of  liens.**^ 

§  542.  Same.  Liability  of  owner  under  void  contract. 
This  subject  has  already  been  developed  at  some  length."-  and 
will  be  here  briefly  recapitulated.  In  reference  to  the  pro- 
vision,*** making  statutory  original  contracts  void  for  failure 
to  comply  with  the  provisions  of  the  section  of  the  statute, 
the  court  has  said :  "  '  No  recovery  shall  be  had  thereon  by 
either  party.'  In  our  judgment,  this  provision  of  the  statute 
takes  away  entirely  the  basis  upon  which  it  was  held,  under 
earlier  statutes,  that  a  subcontractor  could  not  recover,  viz., 
that  the  owner  could  not  be  held  to  pay  more  than  he  had 
contracted  to  pay,  or  in  other  words,  could  not  be  compelled 
to  pay  twice  for  the  same  thing.  This  cannot  be  so  under  the 
present  statute,  where  his  contract  is  not  recorded  [filed]. 
The  contract  cannot  be  the  measure  of  his  liability,  because 
there  is  no  contract."  The  legislature,  though  it  cannot 
compel  the  owner  to  pay  more  than  he  has  contracted  to  pay, 
where  the  contract  is  valid,  unless  notified  of  the  claims  of 
subcontractors  before  payment  to  the  contractor,  yet  has 
power  to  require  a  record  of  the  contract  as  the  condition  of 
its  validity,  and  to  forbid  any  payments  to  the  contractor  as 
against  the  material-men  and  laborers,  unless  the  contract  is 
recorded.**^  "  If  the  legislature  had  the  power  to  say  to  the 
owner,   If  you   pay  the   contractor  after  notice   from   the 

»2  Merced  L.  Co.  v.  BruschI  (Cal.  Sup.,  Nov.  29,  1907),  92  Pac.  Rep. 
844. 

*'  See,  g-eneraUy,  §§319  et  seq.,  ante;  "Notice,"  §§547  et  seq.,  post; 
"Cumulative  Remedies,"   §§638  et  seq..   post. 

Ultra  vires.  Board  of  education:  See  Morgan  v.  Board  of  Education, 
136  Cal.  245,  247.  68  Pac.  Rep.  703.  See  Brown  v.  Board  of  Education. 
103    Cal.    534,    37    Pac.    Rep.    503. 

"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1183. 

»^  Kellogg  V.  Howes,  81  Cal.  170,  176,  22  Pac.  Rep.  509,  6  L.  R.  A. 
588. 

The  act  of  1862  did  not  make  the  original  contract  void  for  want 
of  record,  but  the  penalty  was  the  subordination  of  the  lien  of  the 
original  contract. 

In   further   explanation   of  text,   see   §§  319   et   seq.,   ante. 
Mech.  Liens  —  32 


§  543  mechanics'  liexs.  498 

subcontractor  of  his  claim,  you  shall  still  be  liable  to  the 
latter,  it  has  the  undoubted  right  to  say  to  him,  If  you  do 
not  execute  your  contract  in  a  certain  form,  and  file  it  in 
the  recorder's  office,  you  shall  be  liable  to  material-men  and 
laborers  for  the  value  of  their  material  and  labor.  There  is 
no  hardship  or  injustice  in  this  provision.  The  owner  is  only 
compelled  to  pay  once  for  what  he  receives  and  retains  the 
benefit  of.  He  is  not  bound  and  has  no  right,  as  between  him 
and  subcontractors,  to  pay  the  contractor."  ^^ 

§  543.  Same.  Void  contract.  Penal  provision.  The  pro- 
vision of  section  eleven  hundred  and  eighty-three,^^  avoiding 
the  original  contract  under  certain  circumstances,  is,  how- 
ever, highly  penal  in  its  character,  a  violation  of  its  mandates 
subjecting  the  owner  to  a  liability  for  debts  which  he  never 
agreed  to  pay,  and  for  which  he  receives  no  benefit.  A  stat- 
ute which  provides  for  making  one  person  liable  for  the  debts 
of  another,  and  prescribes  how  and  under  what  circumstances 
he  shall  be  held  thus  liable,  is  penal  in  its  character,  and 
statutes  creating  a  forfeiture  and  imposing  a  penalty  ought 
to  be  strictly  construed  against  the  liability.  Some  doubt  has 
been  expressed  whether  this  rule  of  construction,  which 
obtained  before  the  codes  were  adopted,  is  to  be  given  its 
full  force  under  the  provisions  of  the  code.  But,  however 
this  may  be,  it  is  conceded  that  such  statutes  should  not  re- 
ceive a  construction  unduly  favoring  the  imposition  of  a  pen- 
alty or  forfeiture ;  and  the  rules  governing  such  cases  have 
been  already  stated.  In  the  case  of  a  statute  which  deals 
with  the  constitutional  right  of  an  owner  of  property  to  make 
contracts  relating  to  its  use  and  enjoyment,  the  restriction  of 
the  right  can  go  only  to  the  form  of  the  contract,  and  cannot 
be  extended  by  construction  beyond  what  is  expressed. ^^ 

»•  KeUog-g-  V.  Howes,  81  Cal.  170,  177,  22  Pac.  Rep.  509,  6  L.  R.  A.  588. 

»'  Kerr's  Cyc.  Code  Civ.  Proo.,  S  1183. 

»s  Snell   V.   Bradbury,    139   Cal.   379,   381,    382,   73   Pac.   Rep.   150. 

See,  generaHy,  on  this  subject,  Irvine  v.  McKeon,  23  Cal.  472,  474; 
Trumpler  v.  Bemerly,  39  Cal.  490;  Ex  parte  Gutierrez,  45  Cal.  429: 
People  V.  Soto.  49  Cal.  67;  Moore  v.  Lent.  81  Cal.  502,  506,  22  Pac.  Rep. 
875;  Stimson  M.  Co.  v."  Braun,  136  Cal.  122,  125,  68  Pac.  Rep.  481,  89 
Am.  St.  Rep.   116,   57  L.  R.  A.   726. 


II 


499  IMPROVEMENT    CAUSED   BY   WHOM.  §§  544,  545 

§  544.  Same.  Statute  measure  of  liability  under  void  con- 
tract. Notice  by  subelainiauts  of  an  unfiled  statutory  original 
contract,  which  is  therefore  void,  cannot  affect  their  rights, 
the  question  not  being  one  of  notice,  but  of  the  validity  of  the 
contract ;  nor  are  their  liens  subordinate  to  the  provisions  of 
such  void  contract ;  for  in  such  case  the  statute,  and  not  the 
contract,  measures  the  extent  of  the  owner's  liability."® 

§  545.  Same.  Personal  liability  to  subclaimants  under 
void  contract.  Notwithstanding  the  fact  that  section  eleven 
hundred  and  eighty-three  '°'^  states  that  the  statutory  original 
contract  shall  be  void  for  failure  of  record,  etc.,  and  that  in 
such  case  the  labor  done  and  materials  furnished  are  deemed 
to  have  been  done  and  furnished  at  the  instance  of  the  owner, 
and  a  lien  is  given  to  subclaimants  for  the  value  thereof,  the 
owner  is  not  personally  liable  therefor,  in  the  absence  of 
notice  in  the  nature  of  a  garnishment,-"^  the  only  remedy 
against  him  in  such  case  being  for  the  foreclosure  of  liens. "- 

»»  Kellog-g  V.  Howes,  81  Cal.  170,  178,  22  Pac.  Rep.  509.  6  L.  R.  A.  588, 
11  Pac.  Coast  L.  J.  589:  Butterworth  v.  Levy,  104  Cal.  506.  510,  38  Pac. 
Rep.  897;  WiHamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  C.  Co.,  94  Cal. 
229,  236,  240,  29  Pac.  Rep.  629.  See  Giant  P.  Co.  v.  San  Diego  F.  Co.,  97 
Cal.    263,    266,    32    Pac.    Rep.    172. 

See   "Contract,"   §§319   et  seq.,   ante. 

"^  Kerr's   Cyc.    Code   Civ.   Proc.,    §  1183. 

""  See  "Notice,"  §§  547  et  seq.,  post. 

"^^  Hubbard  v.  Lee  (Cal.  App.,  Oct.  11,  1907),  92  Pac.  Rep.  744;  Mc- 
Menomy  v.  White,  115  Cal.  339,  47  Pac.  Rep.  109;  Southern  Cal. 
L.  Co.  V.  Schmitt,  74  Cal.  625,  627,  16  Pac.  Rep  516;  Santa  Clara  V. 
M.  &  L.  Co.  V.  Williams  (Cal.,  Dec.  8,  1892),  31  Pac.  Rep.  1128;  Davies- 
Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641,  645,  22  Pac.  Rep.  860; 
Kellogg  V.  Howes,  81  Cal.  170,  177,  22  Pac.  Rep.  509,  6  L.  R.  A.  588; 
Giant  P.  Co.  v.  San  Diego  F.  Co.,  97  Cal.  263,  266,  32  Pac.  Rep.  172; 
Madera  F.  &  T.  Co.  v.  Kendall,  120  Cal.  182,  184,  52  Pac.  Rep.  304,  65 
Am.  St.  Rep.  177;  Marchant  v.  Hayes,  120  Cal.  137,  139,  52  Pac.  Rep. 
154;  Macomber  v.  Bigelow,  123  Cal.  532,  56  Pac.  Rep.  449,  126  Cal. 
9,  14,  58  Pac.  Rep.  312. 

Accordins  to  Kellogg  v.  Howen,  81  Cal.  170,  178,  22  Pac.  Rep.  509, 
6  L.  R.  A.  588,  it  was  held  in  Giant  P.  Co.  v.  San  Diego  F.  Co.,  78  Cal. 
193,  20  Pac.  Rep.  419,  "that  the  contract  between  the  subcontractor 
and  contractor  for  materials  was  valid,  notwithstanding  the  original 
contract  was  void  as  between  the  parties  to  it.  But  the  opinion  in 
the  case  was  so  worded  as  to  mislead  in  this  respect,  and  it  broadly 
stated  that  the  contract,  though  wholly  void,  was  not  void,  except 
as  to  the  parties  to  it.  .  .  .  The  court  meant  nothing  more  in  that 
case  tlian  to  hold  that  the  material-man  was  entitled  to  a  lien,  not- 
withstanding the  contract  was  not  filed  in  the  recorder's  office.  What 
was  .said  as  to  the  contract  remaining  to  mark  the  extent  of  the 
recovery    of    the   lien-holders,    etc.,    was    outside   of    the    real    question 


§  546  mechanics'  liens.  500 

And  the  same  rule  applies  to  the  person  who  caused  the 
structure  to  be  erected,  although  he  was  not  the  "  owner,"  if 
he  is  not  in  privity  with  the  claimant.^°^ 

§  546.  Same.  False  representations  by  owner  as  to  com- 
pletion of  building.  Where  the  owner  does  not  file  a  notice  of 
completion,  and  by  his  declarations  intentionally  misleads  a 
claimant  to  believe  that  the  building  is  not  completed,  and 
the  claimant  acts  upon  such  belief,  and  then  fails  to  file  his 
claim  within  the  statutory  time  after  the  actual  completion, 
by  reason  thereof,  the  owner  will  be  estopped  to  falsify  such 
declaration ;  but  such  estoppel  is  not  the  basis  of  the  claim- 
ant's cause  of  action.^"* 

presented  in  the  case,  and  should  be  modified.  The  extent  of  the 
material-man's  recovery  is  not  measured  by  the  terms  of  the  con- 
tract. On  the  contrary,  the  statute  provides,  in  express  terms,  that, 
where  the  contract  is  not  so  recorded,  the  material-man  shall  have 
a  lien  for  the  value  thereof":  Davies-Henderson  L.  Co.  v.  Gottschalk, 
81    Cal.    641,    644,    22   Pac.   Rep.    860. 

Colorado.  Purchaser  of  property,  after  delivery  of  materials,  not 
personally  liable:  See  Burleigh  B.  Co.  v.  ilerchant  B.  &  B.  Co.,  13 
Colo.  App.   455,   59  Pac.  Rep.   83,   85. 

"^  Marchant  v.  Hayes,  120  Cal.  137,  139,   52  Pac' Rep.   154. 

^0*  Hubbard  v.  Lee   (Cal.  App.,  Oct.   11,   1907),   92  Pac.  Rep.   744. 


501  LIABILITY   AS   FIXED   BY    NOTICE.  §  547 


CHAPTER    XXVII. 

OWNER,  EMPLOYER,  OR  PERSON  CAUSING  IMPROVEMENT  TO 
BE  MADE  (CONTINUED).  LIABILITY  AS  FIXED  BY  NOTICE. 

§  547.  Scope  of  discussion. 

§  548.  Notice   to   owner   or   employer.     History. 

§  549.  Statutory   provision. 

§  550.  Notice  to  owner,  and  claim  of  lien.  Distinction  and  pur- 
poses. 

§  551.  Notice  to  owner  creating  personal  obligation. 

§  552.  Notice   to   owner.     Garnishment. 

§  553.  Provision,   when   applicable. 

§  554.  General  rights  upon  service  of  notice. 

§  555.  Same.     Early   statutes. 

§  556.  Same.     Under   valid  contract,   generally. 

§  557.  Same.     Claim  of  lien  as  equivalent  of  notice  to  owner. 

§  558.  Same.     Valid   statutory   original   contract. 

§  559.  Same.     Void  statutory  original   contract. 

§  560.  Same.     Non-statutory  original  contract. 

§  561.  Same.  Effect  of  notice  on  payments  already  made  or  as- 
signed. 

§  562.  Same.     Payment  by  note. 

§  563.  Same.     Relation  to   provision   as   to   premature  payments. 

§  564.  Same.     Service  of  notice  on   public  trustees. 

§  565.  Time  of  giving  notice. 

§  566.  Joint  contractors.     Apportionment. 

§  567.  Action  on  notice. 

§  568.  Form  and  contents  of  notice.     Construction. 

§  569.  Same.     Effect  of  several   notices  served. 

§  570.  Same.     Statutory  requirements  of  notice. 

§  571.  Same.     Sufficiency  of  notice. 

§  547.  Scope  of  discussion.  In  this  chapter  we  shall  con- 
sider the  notice  to  be  served  upon  the  owner  under  section 
eleven  hundred  and  eightj^-four/  its  effect,  and  its  require- 
ments. The  general  differences  in  form  and  purpose  of  the 
notice  here  discussed  from  those  of  the  claim  of  lien  to  be 
filed  with  the  recorder  have  already  been  pointed  out  at  some 
length,-  and  reference  should  l)e  made  to  other  parts  of  this 
work  for  furtlier  discussion  of  the  subject. 

»  Kerr'N    Cje.   Cojle   Civ.   Proc,    §  1184. 
*  See   "Claim,"   !i§  301   et  seq.,   ante. 


§  548  mechanics'  liens.  502 

§  548.  Notice  to  owner  or  employer.'  History.  In  con- 
struing the  word  "  owner,"  as  used  in  the  statute  requiring 
the  name  of  the  "  owner  "  to  be  inserted  in  the  claim  of  lien, 
the  supreme  court  has  said :  "  The  act  of  1850  *  .  .  .  required 
the  claimant  to  give  notice  in  writing  to  the  '  owner '  of  the 
building  on  which  his  labor  or  materials  had  been  expended. 
By  the  act  of  1855  ^  .  .  .  the  claimant  was  required  to  file 
his  claim  in  the  recorder's  office,  and  within  five  days  there- 
after serve  a  copy  thereof  on  the  owner  of  the  building,  or 
his  agent  in  case  the  owner  resided  out  of  the  county,  and  if 
he  had  no  agent,  to  post  it  on  the  building  charged  with  the 
lien.  In  1858  "...  this  act  was  amended  by  authorizing  the 
copy  of  the  notice  to  be  left  at  the  residence  of  the  owner,  or 
deposited  in  the  post-office,  directed  to  him,  instead  of  being 
posted  upon  the  building.  In  the  act  of  1862  ^  .  .  .  the 
claimant  was  required  to  give  a  notice  of  the  nature  and  ex- 
tent of  his  claim  to  the  '  employer  '  of  the  original  contractor. 
The  statute  was  again  revised  in  1868,  and  the  act  of  that 
year  ^  .  .  .  contains  substantially  the  present  provisions  of 
the  code  on  this  subject.  Instead  of  requiring  the  notice  to 
be  given  to  the  '  employer  '  of  the  original  contractor,  as  was 
required  by  the  act  of  1862,  this  act  brings  the  '  owner  '  into 
connection  with  the  claimant,  as  did  the  statutes  prior  to 
1862,  and,  instead  of  requiring  that  the  notice  of  claim  be 
personally  served  upon  him,  authorizes  it  to  be  filed  for 
record  with  the  county  recorder.  By  the  act  of  1862,  the 
notice  was  to  be  given  to  the  '  employer  '  of  the  original  con- 
tractor, irrespective  of  any  interest  that  he  might  then  have 

'  See,  g-eneraUy,  Stlmson  v.  Dunham,  146  Cal.  281,  283,  79  Pac.  Rep. 
968:  Kruse  v.  WMlson,  3  Cal.  App.  91.   84  Pac.  Rep.  442. 

Kxeesslve  claim  in  notice  of  claim  to  o^vner  of  lien  for  materials 
furnished  to  the  contractor,  lield  not  to  preclude  a  recovery  of  the 
amount  actually  due,  where  the  claim  was  made  in  good  faith:  Stran- 
dell  V.  Moran   (Wash.,  June  2.  1908),  95  Pac.  Rep.  1106. 

Sufficient  signature  to  notice.  Where  claimant  was  doingr  busi- 
ness as  "A.  S.,  agent,"  a  signature  to  a  claim  was  simply,  "A.  S.": 
held  to  be  a  sufficient  signature,  in  an  action  on  contractor's  bond  to 
recover  for  materials  furnished  in  repairing  sidewalks:  Id. 

*  Stats.  1850,  p.  212,  §  2. 

'  Stats.   1855,  p.   157,   §  3. 

•  Stats.   1858,  p.   225. 

'  Stats.    1862,   p.    385,   §"5. 
»  Stats.   1868,  p.   589. 


503  LIABILITY    AS   FIXED    BY    NOTICE.  §  549 

in  the  property,  and  the  restoration  of  the  term  '  owner  '  in 
1868  indicates  that  the  legislature  deemed  that  notice  to  the 
employer  might  not  be  sufficient  if  such  employer  was  not 
also  the  owner."  ® 

§  549.  Statutory  provision.  The  California  Code  of  Civil 
Procedure  originally  made  no  provision  for  any  notice  to  the 
owner,  except  the  recorded  claim  of  lien,  and  the  code  con- 
tinued in  this  coudition  until  the  enactment  of  section  eleven 
hundred  and  eighty-four,^°  in  sul)stantially  its  present  form, 
in  1885,  when  personal  notice  to  the  owner  was  again  pro- 
vided for,  in  addition  to  the  recorded  notice.  The  provision 
was  again  amended  in  1887,  so  far  as  this  subject  is  con- 
cerned, as  follows :  "  Any  of  the  persons  mentioned  in  section 
eleven  hundred  and  eighty-three,  except  the  contractor,  may 
at  any  time  give  to  the  reputed  ^^  owner  a  written  notice  that 
they  have  performed  labor  or  furnished  materials,  or  both, 
to  the  contractor,  or  other  person  acting  by  authority  of  the 
reputed  owner,  or  that  they  have  agreed  to  do  so,  stating  in 
general  terms  the  kind  of  labor  and  materials,  and  the  name 
of  the  person  to  or  for  whom  the  same  was  done  or  furnished, 
or  both,  and  the  amount  in  value,  as  near  as  may  be,  of  that 
already  done  or  furnished,  or  both.  Such  notice  may  be 
given  by  delivering  the  same  to  the  reputed  owner  personally, 
or  by  leaving  it  at  his  residence  or  place  of  business,  with 
some  person  in  charge,  or  by  delivering  it  to  his  architects, 
or  by  leaving  it  at  their  residence  or  place  of  business,  with 
some  person  in  charge,  or  by  posting  it  in  a  conspicuous 

»  Corbett  v.  Chambers,   109  Cal.  178,  181,  41  Pac.  Rep.  873. 

Act  of  18C8,  it  is  to  be  noted,  however,  provided  only  for  the 
recorded  notice,  and  not  for  the  notice  to  the  owner  of  the  character 
discussed    in    this   section. 

"'   Kerr's   Cye.   Code   Civ.   Proe.,   §  1184. 

"  The  uinendnient  inserted  the  %vord  "reputed"  before  the  word 
"owner,"  wlierever  it  occurs  in  tlie  section.  It  is  to  be  noted,  in 
reference  to  this  change,  that  the  statute  contemplates  a  lien  upon 
the  fund  in  the  hands  of  the  employer  which  is  independent  of  the  lien 
upon  the  property,  which  can  only  be  created  by  the  owner  thereof, 
or  through   his  agent,   actual   or  ostensible,   or  through    estoppel. 

See  "Constitutional  Aspects,"  §§34  et  seq.,  ante;  "Estoppel," 
SS  469  et  seq.,  ante;   "Agency,"   §§572   et  seq.,  ante. 

Utah.  Compare  act  of  1890,  §  12,  permitting  statement  of  intention 
to  furnisli  materials,  etc.:  Morrison  v.  Carey-Lombard  Co.,  9  Utah  70, 
33   Pac.  Rep.   238. 


§  550  mechanics'  liens.  504 

place  upon  the  mining  claim  or  improvement.^^  No  such 
notice  shall  be  invalid  by  reason  of  any  defect  of  form,  pro- 
vided it  is  sufficient  to  inform  the  reputed  owner  of  the 
substantial  matters  herein  provided  for,  or  to  put  him 
upon  inquiry  as  to  such  matters.^^  Upon  such  notice 
being  given,  it  shall  be  the  duty  of  the  person  who  con- 
tracted with  the  contractor  ^*  to,  and  he  shall,  withhold  from 
his  contractor,  or  from  any  other  person  acting  under  such 
reputed  owner,  and  to  whom  by  said  notice  the  said  labor 
or  materials,  or  both,  have  been  furnished,  or  agreed  to  be 
furnished,  sufficient  money  due,  or  that  may  become  due  to 
such  contractor,  or  other  person,^^  to  answer  such  claim  and 
any  lien  that  may  be  filed  therefor  for  record  under  this 
chapter,  including  counsel  fees  not  exceeding  one  hundred 
dollars  in  each  case,^**  besides  reasonable  costs  provided  for 
in  this  chapter."  ^^ 

§  550.  Notice  to  owner,  and  claim  of  lien.  Distinction 
and  purposes.  This  notice  to  the  owner  or  employer,  pro- 
vided for  in  the  statute,  is  not  the  claim  of  lien  that  is  to  be 

"  Tlie  section,  as  It  stood  in  18S5,  enumerated  as  the  objects  upon 
which  the  notice  mig'ht  be  posted,  "  mining  claim,  building,  wharf, 
bridge,  ditch,  flume,  aqueduct,  tunnel,  fence,  machinery,  railroad, 
wagon-road,  or  other  structure." 

"  The  words  "  reputed,"  before  owner,  and  "  or  to  put  him  upon 
inquiry  as  to  such   matters,"  were  not  in  the  provision   of   1885. 

"  The  provision  of  1885  contained  the  word  "owner,"  instead  of 
the    clause,    "  person    who    contracted    with    the    contractor." 

*^  The  section,  in  1885,  contained  the  provision,  "all  money  due 
or  that  may  become  due  to  such  contractor  or  other  person,  or  sufH- 
cient  of   such   money   to  answer,"   etc. 

^•^  The  provision  of  1885  read,  "including  costs  and  counsel  fees 
provided  for  in  this  chapter."  The  provision  as  to  counsel  fees,  in 
the  present  statute,  was  declared  unconstitutional:  See  §  40,  ante. 

"  Tlie  amendment  of  1887,  so  far  as  relates  to  this  subject,  also 
omitted  from  the  end  of  the  provision  the  following:  "until  such 
notice  is  by  writing  withdrawn;  and  all  moneys  paid  thereafter  by  the 
owner  to  the  contractor,  or  such  other  person,  while  such  notice  is 
in  force,  shall  for  the  purpose  of  all  liens  of  all  persons,  except  that 
of  the  contractor,  be  deemed  a  payment  prior  to  the  time  when  the 
same  was  due  within  the  meaning  of  and  subject  to  the  provisions  of 
this  section":  See  Stimson  v.  Dunham,  C,  H.  Co.,  146  Cal.  281,  79  Pac. 
Rep.    168. 

Coloratlo.  The  notice  to  the  owner  of  the  intention  to  file  a  claim 
under  the  act  of  1893  i-s  for  the  owner's  benefit,  and  he  alone  can 
raise  objection,  if  it  is  not  done:  Small  v.  Foley,  8  Colo.  App.  435,  47 
Pac.   Rep.   64. 


505"  LIABILITY    AS   FIXED    BY    NOTICE.  §  550 

recorded.^^  It  has  already  been  seen  that  the  object  of  the 
recorded  claim  of  lien  is  twofold,  namely:  1.  To  give 
notice  to  the  owner  and  others  interested;  and  2.  To  perfect 
and  consummate  the  lien  on  the  realty.^" 

The  object  and  the  effect  of  the  noti:o  to  the  owner,  pro- 
vided for  in  section  eleven  hundred  and  eighty-four,-"  differ 
in  some  vital  particulars  from  those  of  the  claim  of  lien,  and 
the  provision  just  quoted  has  introduced  into  the  statute 
an  element  in  some  respects  similar  to,  but  in  other  respects 
essentially  different  from,  the  provisions  in  preceding  stat- 
utes relating  to  personal  notice  to  the  owner.  It  has 
been  said  that  "  the  main  object  of  giving  the  personal 
notice  of  the  claim  to  the  owner  of  the  building  is  to  aft'ect 
him  with  notice  of  the  lien,  and  to  afford  him  an  opportunity 
to  protect  himself  against  the  same  in  his  dealings  Avith 
the  original  contractor."  ^^ 

It  is  the  object  of  both  the  "  claim  "  and  the  "  notice  "  to 
affect  the  owner  with  notice,  and  to  warn  him  not  to  make 
payment  to  the  contractor,  but  to  create  a  *'  fund,"  to  the 
extent  of  which  the  claimant  may  go  upon  the  property  to 

"  Jewell  V.  McKay,  82  Cal.   144.   149,  23  Pac.  Rep.  139. 

Itemized  account  not  required  in  notice  to  owner:  See  Heston  v. 
Martin,  11  Cal.  41;  Brennan  v.  Swasey.  16  Cal.  141,  76  Am.  Deo.  507; 
Selden  v.  Meeks,  17  Cal.  131;  Davis  v.  Livingston,  29  Cal.  283;  Hicks  v. 
Murray,  43  Cal.  522;  Jewell  v.  McKay,  82  Cal.  144.  151,  23  Pac.  Rep. 
139;  Lef twitch  L.  Co.  v.  Florence  Mut.  B.  L.  &  S.  Assoc,  104  Ala.  584, 
594,  18  So.  Rep.  48;  Nichols  v.  Culver,  51  Conn.  179;  Taylor  v.  Nether- 
wood,  91  Va.  88,  93,  20  S.  E.  Rep.  509. 

"  Kellogg  V.  Howes,  81  Cal.  170,  179,  22  Pac.  Rep.  509,  6  L.  R.  A.  588, 

11  Pac.   Coast  L.   J.    589. 
See   §§  361   et  seq.,  ante. 

Colorado.     Act  of  1881  required  both  notices:  Greeley  Co.  v.  Harris, 

12  Colo.  226,  20  Pac.  Rep.  764;  Sayre-Newton  L.  Co.  v.  Park,  4  Colo. 
App.  482,  36  Pac.  Rep.  445;  Denver  H.  Co.  v.  Croke,  4  Colo.  App.  530, 
36  Pac.  Rep.  624    (1883). 

As  to  record  of  affidavit  that  owner  was  unknown:  Id.  S.  See 
Schradsky  v.  Dunklee,  9  Colo.  App.  394,  48  Pac.  Rep.  666;  Rice  v.  Car- 
michael,    4    Colo.    App.    84,    34    Pac.    Rep.    1010. 

="  Kerr's  Cyc.  Code  Civ.  Proc,  §  1184. 

"  Corbett  v.  ChambL-rs,  109  Cal.  178,  182,  41  Pac.  Rep.  873.  In 
this  able  opinion,  tlie  learned  justice  does  not  refer  to  tlie  fact  that 
the  statute  then  in  force  also  provided  for  the  personal  notice  to 
the   owner   here    discussed. 

See   "  Nature   and   Object   of   Claim,"    §§  362,    365,   ante. 

Colorado.  Rice  v.  Carmichael,  4  Colo.  App.  84,  34  Pac.  Rep.  1010 
(1889).  The  owner  at  the  time  of  notice  is  the  one  to  receive  it: 
Id.,  p.  88. 


§  551  mechanics'  liens.  506 

enforce  his  lien ;  but  furthermore,  the  object  of  the  "  notice 
to  the  owner  "  is  to  create  a  larger  fund  by  an  earlier  notice 
than  would  be  given  by  the  recorded  claim  of  lien,  which,  for 
obvious  reasons,  elsewhere  discussed,--  would  in  most  cases 
be  filed  after  many  payments  had  been  made  to  the  con- 
tractor. The  "  notice  to  the  owner,"  therefore,  is  a  measure 
of  extra  precaution  on  the  claimant's  part,  and  it  is  optional 
with  him  to  give  it  or  not.^^ 

§  551.     Notice    to    owner    creating    personal    obligation. 

While  the  claim  of  lien  is  necessary  to  perfect  and  consum- 
mate the  lien  on  the  property,  the  "  notice  to  the  owner  " 
or  employer  may  create  and  perfect  a  personal  obligation, 
independently  of  any  lien  upon  any  property,  in  the  nature 
of  a  garnishment.-*  to  the  extent  of  the  "  fund,"  and  this  is 

^  §§  362  et  seq.,  ante.  But  see  Valley  L.  Co.  v.  Struck,  146  Cal. 
266.   80   Pac.   Rep.   405. 

=^  Jewell   V.   McKay,   82   Cal.   144,    149,    23   Pac.   Rep.   139. 

Montana.  Tlie  notice  to  the  owner  provided  by  Rev.  Stats.,  div.  v, 
§  821,  is  essential:  Whiteside  v.  Lebcher.  7  Mont.  473,  17  Pac.  Rep.  548. 
The  objection  can  be  raised  for  the  first  time  on  appeal:  Id. 

2*  Notice  is  in  nature  of  garnislinient,  and  works  an  assigrnment 
pro  tanto  of  the  moneys  due  or  to  become  due  from  the  owner  to 
the  contractor:  French  v.  Powell,  135  Cal.  636,  642,  68  Pac.  Rep.  92. 

In  W'eldon  v.  Superior  Court,  138  Cal.  427,  429,  431,  71  Pac.  Rep. 
502,  it  was  said:  "Section  1184  of  the  Code  of  Civil  Procedure  is  a 
part  of  the  legislative  sclieme  devised,  pursuant  to  the  constitutional 
provision,  to  provide  security  to  mechanics,  laborers,  material-men, 
and  others  mentioned,  for  their  labor  bestowed  or  materials  fur- 
nished in  the  erection  or  improvement  of  buildings.  The  giving  of 
the  statutory  notice  does  not  establish  a  lien  on  the  fund  in  the 
owner's  hands,  in  the  sense  that  the  recorded  lien  is  established  on 
the  buildings  and  land,  under  section  1183,  but  it  does  not  follow  that 
no  sort  of  equitable  lien  may  not  be  enforced  against  the  fund 
referred  to  in  section  1184.  The  section  first  deals  witli  the  contract, 
and  payments  under  it,  and  a  reserved  fund  by  the  owner  of  twenty- 
flve  per  cent  of  the  contract  price,  which  he  is  to  withhold  for 
thirty-five  days.  Provision  is  made  to  protect  any  lien-holder,  under 
section  1183,  from  payments  by  the  owner  before  due  under  the  con- 
tract. It  is  then  provided  that  '  any  of  the  persons  mentioned  in 
section  1183,  except  the  contractor,  may  at  any  time  give  to  the 
reputed  owner  a  written  notice  that  they  have  .  .  .  furnished  ma- 
terials.' .  .  . 

"  Tlie  effect  tliat  may  be  gi^en  to  tliis  section  [eleven  hundred  and 
eighty-four  of  the  Code  of  Civil  Procedure]  does  not  depend  upon  the 
lien  provided  for  in  section  1183.  Whether  the  notice  may  result  in 
establishing  an  equitable  garnishment  or  assignment,  or  confers  an 
equitable  lien,  or  is  a  form  of  equitable  subrogation  regulated  by 
statute,  as  it  has  been  variously  termed,  this  court  has  said:  'The 
right  to  control  and  direct  the  funds   remaining  in   the  hands  of  the 


507  LIABILITY   AS   FIXED    BY    NOTICE.  §  552 

a  vital  distinction  between  the  two.  Notice  to  the  owner  or 
employer,  therefore,  has  been  provided  for  by  the  statute, 
upon  the  theory  of  a  "  fund,"  and  the  proceeding  to  enforce 
the  lien  upon  the  "  fund,"  as  distinct  from  a  suit  to  foreclose 
a  lien  upon  the  "  property,"  necessarily  implies  a  personal 
lial)ility  of  the  emploj'er  to  the  extent  of  the  "  fund."  ^^ 

§  552.  Notice  to  owner.  Garnishment.-*^  Under  some 
early  statutes,  as  pointed  out  in  the  preceding  section,  a 
personal  notice  to  the  owner  was  provided  for,  and  the 
right  given  by  reason  of  such  notice  was,  in  its  nature,  an 
attachment  or  garnishment  without  suit.-^  This  was  intended 
to  prevent  litigation,   by  substituting  such   a  cheap,  easy, 

owner  is  as  distinct  and  independent  as  the  right  to  file  and  enforce 
a  lien.  It  is  a  remedy  entirely  disconnected  from  and  additional  to 
the  remedy  by  lien  upon  the  building-,  .  .  .  which  should  be  regarded 
with  favor  by  the  court':  Bates  v.  Santa  Barbara  County,  90  CaL 
543,  27  Pac.  Rep.  438.  See  also  First  National  Bank  v.  Ferris  Irr. 
Dist.,  107  Cal.  55,  40  Pac.  Rep.  45;  Bianchi  v.  Hughes,  124  CaL  24, 
56  Pac.  Rep.   610. 

"In  Bianehl  v.  Hughes,  supra,  it  was  said:  'This  right  to  garnish 
the  moneys  of  the  contractor  in  the  hands  of  the  owner  is  limited 
by  the  terms  of  the  section  to  the  persons  mentioned  in  §  1183,  and  is 
but  a  cumulative  or  additional  remedy  given  for  the  purpose  of 
enforcing  in  another  mode  the  right  for  which,  by  §  1183,  a  lien  is 
authorized.'  Doubtless,  Swinford,  the  material-man,  might  have 
brought  his  action,  on  the  law  side  of  the  court,  against  Weldon,  the 
contractor,  and  served  the  ordinary  garnishment  on  the  owner, 
Maher,  but  he  was  not  restricted  to  this  remedy.  An  action  at  law 
would  not  lie  against  the  owner  alone,  for  his  liability  would  depend 
on  the  liability  of  the  contractor  being  first  determined.  Where  the 
action  is  by  the  material-man  against  both  the  owner  and  the  con- 
tractor, the  owner  might  defend  by  showing  that  there  were  other 
claimants  to  the  fund,  who  had  served  like  notice  on  him,  in  excess 
of  the  amount  in  his  hands,  and  this  would  necessitate  an  account- 
ing and  an  apportionment  among  the  several  claimants  of  the  fund, 
after  the  liability  of  the  contractor  had  been  fixed.  In  most  cases 
this  very  situation  would  arise.  But  such  an  action  —  and  this  is  in 
fact  such  a  one,  except  that  there  is  but  one  claimant  —  would 
clearly  be  equitable.  That  the  court  should  permit  such  proceeding 
to  be  brought,  and  thus  determine  in  one  action  the  rights  of  the 
parties  and  secure  to  the  material-man  the  fruits  of  his  notice,  and 
compel  the  owner  to  perform  the  duty  imposed  upon  him  by  statute. 
we  feel  quite  sure":  Weldon  v.  Superior  Court,  138  Cal.  427,  429,  431,  71 
Pac.   Rep.   502. 

"  See  McCrea  v.  Johnson,   104  Cal.  224,  37   Pac.   Rep.   902. 

-"  See  §  17,  ante,  and  §§  683  et  seq.,  post. 

2'  Cahoon  v.  Levy,  6  Cal.  295,  297,  65  Am..  Dec.  515  (1850);  Davis  v. 
Livingston,  29  Cal.  283,  287.  See  McAlpin  v.  Duncan,  16  Cal.  126,  128 
(1858);  Kellogg  v.  Howes,  81  Cal.  170,  172,  22  Pac.  Rep.  509,  6  L.  R.  A. 
588;  Valley  L.  Co.  v.  Struck,  146  Cal.  266,  274,  80  Pac.  Rep.  405. 


§  552  mechanics'  liens.  508 

and  expeditious  means  of  attaching  in  the  hands  of  the 
owner  or  employer  any  moneys  due  from  him  to  the  eon- 
tractor.2*  Besides  the  right  given  by  the  service  of  the 
notice  upon  the  owner  to  enforce  the  lien  upon  the  property, 
as  above  discussed,  under  the  present  statute,  unlike  prior 
statutes,  the  right  to  enforce  the  lien  upon  the  "  fund  "  is 
also  given,  independently  of  any  lien  upon  the  property.-® 
In  this  connection,  the  supreme  court  has  said:  "Upon 
receipt  of  the  notice  the  owner  becomes  liable  as  on  garnish- 
ment or  attachment.^°  '  It  is  a  form  of  equitable  subroga- 
tion regulated  by  statute.'  ^^  The  rights  of  plaintiffs  do  not 
depend  upon  the  legality  of  the  contract.  Whether  it  was 
void  or  valid,  the  contractor  and  subcontractor  will  be  held 
to  be  the  agent  of  the  owner  for  the  purposes  of  the  law, 
and  neither  the  owner  nor  the  other  can  assert  a  want  of 
privity  between  himself  and  the  laborer  or  material-man. 
The  right  of  plaintiffs  to  recover  does  not  depend  upon  their 

=»  Cahoon  v.  Levy,  6  Cal.  295,  297;  Davis  v.  Livingston,  29  Cal.  283, 
287;    see    McAlpin    v.    Duncan.    16    Cal.    126,    128. 

»  Knowles  v.  Joost,  13  Cal.  620,  621  (1856);  Cahoon  v.  Levy,  6 
Cal.  295,  297,   65  Am.  Dec.   515   (1856>. 

jVotice  under  early  statutes.  Such  notice,  however,  did  not,  under 
the  early  statutes,  create  a  personal  liability,  but  a  liability  only 
throug-h  the  intervention  of  the  lien  upon  the  property:  Davis  v. 
Living-ston,  29  Cal.  283,  287.  And  the  lien  attached  from  the  time 
of  such  notice  in  the  case  of  subclaimants,  and  from  the  commence- 
ment of  the  work  in  the  case  of  contractors,  under  the  statute:  the 
act  being  silent  as  to  the  time  within  which  notice  must  be  served: 
Cahoon  v.  Levy,  6  Cal.   295,  297,   65  Am.  Dec.   515   (1856). 

Distinction  bet^veen  original  contractors  and  subclaimants  does 
not  exist  under  the  present  statute:  See  Kerr's  Cyc.  Code  Civ.  Proc, 
§  1186;  Davies-Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641,  648,  22  Pac. 
Rep.    860. 

Under  act  of  1855,  the  lien  related  back  to  the  time  that  the  work 
was  commenced,  and  the  right  of  creditors  to  attach  a  debt  due  from 
the  owner  to  the  contractor  before  notice  of  the  claim  of  the  sub- 
contractor was  subordinated  to  the  latter,  where  the  work  was  com- 
menced before  such  garnishment:  Tuttle  v.  Montford,  7  Cal.  358,  360. 
See  "Priorities,"   §§486  et  seq.,  ante. 

If  tlie  claimant  failed  to  give  notice,  he  was  obliged  to  yield  to  the 
claim  of  the  attaching  creditor:  Cahoon  v.  Levy,  6  Cal.  295,  297,  65 
Am.    Dec.    515    (1856). 

Colorado.  Such  notice  need  not  be  served  by  a  contractor:  Bitter 
V.  Mouat  L.  &  I.  Co.,  10  Colo.  App.  307,  51  Pac.  Rep.  519  (1883,  1889); 
nor  upon  a  mortgagee:   Id. 

=»  Citing  McAlpin    v.  'Duncan.    16   Cal.    126,    128. 

"  Citing  Loonie  v.  Hogan,  9  N.  Y.  43'5,  439,  440,  61  Am.  Dec.  683; 
Prank  v.  Chosen  Freeholders,  39  N.  J.  L.  (10  Vr.)  3i7;  2  Jones  on 
Liens,    §  1285. 


509  LIABILITY   AS   FIXED    BY    NOTICE.  §  552 

right  to  a  lien.  The  equitable  garnishment  provided  for  by 
section  eleven  hundred  and  eighty-four  of  the  Code  of  Civil 
Procedure  is  a  cumulative  remedy  in  ordinary  cases.  .  .  . 
The  true  spirit  and  merit  of  the  statute  is  lost  sight  of  in 
the  contention  that  this  remedy  is  a  mere  substitute  for  the 
remedy  by  lien,  and  that  when  the  latter  does  not  exist,  the 
former  cannot  exist.  The  right  to  control  and  direct  the 
funds  remaining  in  the  hands  of  the  owner  is  as  distinct  and 
independent  as  the  right  to  file  and  enforce  a  lien.  It  is  a 
remedy  entirely  disconnected  from  and  additional  to  the 
remedy  by  lien  upon  the  building;  and  as  the  exceptional 
element  which  it  is  claimed  arrests  in  this  case  the  usual 
operation  of  the  lien  law  does  not  exist,  it  is  a  remedy  which 
should  be  regarded  with  favor  by  the  court."  " 

"  Bates  V.  Santa  Barbara  County,  90  Cal.  543,  546,  27  Pac.  Rep.  438; 
Board  of  Education  v.  Blake   (Cal.,  Dec.  3,  1894),  38  Pac.  Rep.  536. 

"The  notice  authorized  by  this  section  has  the  effect  of  a  garnish- 
ment of  the  moneys  coming-  to  the  contractor  which  are  in  the  hands 
of  the  owner,  and,  in  the  absence  of  any  claim  upon  such  moneys  in 
behalf  of  other  lien  claimants,  the  owner  will  be  liable  to  the 
material-man  or  subcontractor  for  the  amount  of  the  claim  to  the 
extent  of  his  liability  to  the  contractor.  ...  This  right  to  garnish 
the  moneys  of  the  contractor  in  the  hands  of  the  owner  is  limited 
by  tlie  terms  of  the  section  to  '  the  persons  inentioned  in  §  1183,'  and 
is  but  a  cumulative  or  additional  remedy  given  for  the  purpose  of 
enforcing  in  another  mode  the  right  for  which,  by  §  1183,  a  lien  is 
authorized  upon  the  property  upon  which  the  labor  has  been  per- 
formed, or  for  which  the  materials  were  furnished.  It  does  not  con- 
fer upon  them  a  right  to  collect. from  the  owner  any  claim  they  may 
have  against  the  contractor  for  labor  and  materials,  other  than  is 
conferred  elsewhere  in  the  chapter,  but  provides  that,  instead  of 
filing  with  the  county  recorder  the  notice  of  their  claim  of  lien,  and 
enforcing  the  same  against  the  property,  they  may  intercept  the 
moneys  in  the  hands  of  the  owner  to  the  extent  of  their  claim,  by 
giving  him  this  notice.  The  remedy  thus  provided  is  limited  to  the 
cases  in  which,  by  §  1183,  the  property  may  be  made  subject  to  a 
lien,  and  the  owner  is  not  required,  upon  receiving  such  notice,  to 
withhold  from  the  contractor  any  moneys  in  his  hands,  except  for 
materials  furnished  or  labor  pei'formed  upon  the  property":  Bianchi 
V.  Hughes,  124  Cal.  24,  27,  56  Pac.  Rep.  510.  In  this  case  the  con- 
tract was  void,  and  there  was  no  valid  claim  of  lien;  and  no  lien  on 
the  fund  was  allowed  for  material  furnished  which  was  not  affixed 
to   the   building. 

Under  the  act  of  1862  it  was  held  that  the  provision  as  to  notice 
must  be  strictly  complied  with:    Davis  v.  Livingston,   29  Cal.   283,   287. 

See    "  Construction,"    §§  24    et    seq.,    ante. 

On  the  subject  of  Karnishnieut,  see  Wilson  v.  Samuels.  100  Cal.  514, 
519,  35  Pac.  Rep.  148;  French  v.  Powell,  135  Cal.  636,  640.  68  Pac.  Rep. 
92;  Newport  W.  &  L.  Co.  v.  Drew,  125  Cal.  585,  589,  58  Pac.  Rep.  187, 
di.siinKuiMhed  in  Valley  L.  Co.  v.  Struck,  146  Cal.  266,  271,  80  Pac. 
Rep.  405. 


§§553.554  mechanics'  liens.  510 

§  553.  Provision,  when  applicable.  The  provision  is  con- 
fined to  the  "  persons  mentioned  in  section  eleven  hundred 
and  eighty-three  "  of  the  Code  of  Civil  Procedure,''^  and 
hence  not  for  work  on  sidewalks,  grading,  etc.,  in  incorpo- 
rated cities,  under  section  eleven  hundred  and  ninety-one.^* 
The  provision  as  to  notice,  moreover,  does  not  authorize  a 
notice  to  the  original  contractor  to  intercept  moneys  due 
from  him  to  his  subcontractors.^^ 

In  the  case  of  a  valid  statutory  original  contract,^*'  as  in 
the  case  of  non-statutory  original  contracts,^'  heretofore 
discussed,^^  the  claimant  is  entitled  to  a  lien  to  an  extent 
not  exceeding  the  amount  of  the  contract  price  in  the  hands 
of  the  owner  when  the  claim  of  lien  is  filed,  even  if  no 
notice  is  served  on  the  owner.  In  the  case  of  valid  statutory 
original  contracts,  as  in  the  case  of  other  valid  original  con- 
tracts hereafter  discussed,  if  the  claimant  desires  to  have 
further  security  for  his  labor  or  materials,  it  is  necessary 
for  him  to  give  a  notice  to  the  owner  or  employer  under 
section  eleven  hundred  and  eighty-four  ^^  before  any  proper 
paj'ment  is  made  to  the  contractor  in  accordance  with  the 
statute  and  contract.  This  not  only  insures  his  lien  on  the 
property  to  the  extent  of  the  moneys  which  the  owner  is 
notified  to  withhold  from  the  contractor,  but,  as  stated 
before,  also  gives  him  a  lien  upon  the  fund  thus  created  in 
the  hands  of  the  employer,  which  may  be  enforced  by  a 
personal  action  against  him. 

§  554.  General  rights  upon  service  of  notice.  The  plain- 
tiff in  an  action,  founded  upon  service  of  notice  to  the  owner 

^  Bianchi  v.  Hughes,  124  Cal.  24,   56  Pac.  Rep.  610. 

"*  Kerr's  Cyc.  Code  Civ.  Proc.  §  1191. 

35  Kruse  v.  Wilson,  3  Cal.  App.  91,  84  Pac.  Rep.  442.  See  Bates  v. 
Santa  Barbara  Co.,  90  Cal.  543.  27  Pac.  Rep.  438. 

^  Harmon  v.  San  Francisco  &  S.  R.  R.  Co.,  86  Cal.  617,  621,  25  Pac. 
Rep.  124. 

>•  Gibson  v.  W^heeler,  110  Cal.  243,  245,  42  Pac.  Rep.  810;  Kerckhoff- 
Cuzner  M.  &  L.  Co.  v.  Cummings,  86  Cal.  22,  26,  24  Pac.  Rep.  814; 
W'iggins  V.  Bridge,  70  Cal.  437,  439,  11  Pac.  Rep.  754;  Schmid  v.  Busch, 
97  Cal.  184,  185,  31  Pac.  Rep.  893;  Turner  v.  Strenzel,  70  Cal.  28,  30,  11 
Pac.  Rep.  389  (apparently  non-statutory  original  contrac*).  See  Rosen- 
kranz  v.  Wagner,  62  Cal.  151,  154. 

See  §§  258  et  seq.,  ante. 

^  See  §§  259  et  seq.,  ante. 

»»  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1184. 


511  LIABILITY    AS   FIXED    BY    NOTICE.  §  555 

or  employer,  under  the  statute,  may  obtain  judgment  for 
any  deficiency  there  may  be  against  the  person  to  whom 
the  materials  were  furnished  or  for  whom  the  work  Avas 
done.'"'  The  right  given  by  the  service  of  such  notice,  as 
against  the  contractor,  does  not  depend  upon  the  completion 
of  the  contract  by  the  contractor.*^ 

Right  personal.  The  right  to  give  the  notice  is  personal, 
and  does  not  pass  by  assignment ;  but  it  is  thought  that  after 
the  notice  has  been  given,  the  assignee  may  enforce  a  lien 
upon  the  "  fund,"  or  against  the  owner  or  employer  per- 
sonally.*- 

§  555.  Same.  Early  statutes.  Its  effect,  when  served  by 
the  proper  parties,  and  under  certain  conditions,  is  to  create 
new  rights  and  new  liabilities,*^  not  created  by  the  record  of 
a  proper  claim  of  lien.  Prior  to  the  amendments  of  ^larch 
18,  1885,  creating  statutory  original  contracts,  and  providing 
for  notice  to  the  owner,  and  where  the  statute  did  not 
impose  any  liability  upon  the  owner  or  his  property  by  a 
mere  notice  to  the  owner  by  a  subcontractor,  there  was  no 
duty  imposed  upon  the  owner  to  retain  any  portion  of  the 
contract  price  to  satisfy  any  lien  to  secure  which  a  sub- 
contractor might  subsequently  file  a  claim  of  lien.** 

«>  Bates  V.  Santa  Barbara  County,  90  Cal.  543,  27  Pac.  Rep.  438. 

In  McCrea  v.  Johnson,  104  Cal.  224,  226,  37  Pac.  Rep.  902,  this  ques- 
tion of  personal  liability  was  referred  to,  but  not  decided;  but  in 
First  Nat.  Bank  v.  Perris  Irr.  Dist.,  107  Cal.  55,  65,  40  Pac.  Rep.  45,  it 
was  held  that  the  material-man  is  not  required  to  record  notice  of  his 
claim  in  the  offlce  of  the  county  recorder,  as  in  the  case  of  claims  of 
lien  ag-ainst  the  property  or  contractor,  in  order  to  avail  himself  of 
the  remedy  provided  for  by  §  1184,  Kerr's  Cyc.  Code  Civ.  Proe..  for  in- 
tercepting- the  contract  price  in  the  hands  of  the  owner  by  notice,  and 
the  validity  of  such  notice  is  not  dependent  upon  proceeding's  to 
enforce  a  lien  upon  the  property  affected  by  the  contract,  nor  is  such 
notice  subject  to  the  limitations  provided  for  in  §  1190  of  same  code, 
requiring:  suit  to  be  commenced  within  certain  time  to  foreclose  the 
lien  upon  the  property.     See  notes,  §  552,  ante. 

"  Russ  L.  &  M.  Co.  V.  Roggenkamp  (Cal.,  Jan.  30,  1894),  35  Pac.  Rep. 
643. 

«  McCrea  v.  Johnson,  104  Cal.  224,  37  Pac.  Rep.  902. 

"  McCrea  v.  Johnson,  104  Cal.  224,  226.  37  Pac.  Rep.  902. 

"  McCants  v.  Bush,  70  Cal.  125,  126,  11  Pac.  Rep.  601.  But  see 
Rosenkranz  v.  W^agner,  62  Cal.  151,  154,  and  Renton  v.  Conley,  49  Cal. 
185,   188. 

As  to  owner  .safely  making  imyiiienLs  as  aK'ain.st  third  party  not 
■crvlng  notice  on  liini.  as  provided  in  §  1184,  Kerr's  Cyc.  Code  Civ. 
Proc,  see  Valley  L.  Co.  v.  Struck,  146  Cal.  266,  270,  80  Pac.  Rep.  405. 


§§  556, 557  mechanics'  liens.  512 

§  556.  Same.  Under  valid  contract,  generally.  It  has 
recently  been  held,  in  a  case  in  the  court  of  appeals,  that, 
under  a  valid  contract,  notice  to  the  owner  to  withhold 
money  does  not  entitle  claimant  to  a  personal  judgment 
against  the  owner  for  the  sum  due  him  in  excess  of  the  sum 
due  the  contractor,  and  that  the  equitable  garnishment  in 
fact  is  only  to  such  sum  as  might  be  payable  to  the  con- 
tractor after  the  extinguishment  of  the  liens ;  for  the  reason, 
as  it  is  stated,  that  until  such  liens  are  extinguished  no  sum 
is  payable  from  the  owner  to  the  contractor,  and  that  where 
the  claims  exceed  the  amount  of  monej^  in  the  hands  of  the 
owner,  there  is  nothing  upon  which  the  garnishment  can 
operate.*^ 

§  557,     Same.     Claim  of  lien  as  equivalent  of  notice  to 

owner.  In  case  of  a  valid  statutory  original  contract,  the 
statute  has  provided  when  the  last  payment  of  "  at  least 
twenty-five  per  cent  of  the  whole  contract  price  "  shall  be 
made,  namel.y,  "  at  least  thirty-five  days  after  the  final  com- 
pletion of  the  contract,"  and  has  made  other  restrictions 
upon  payments.^**  If,  therefore,  a  claim  of  lien  is  filed  under 
such  a  contract,  as  required  by  law,  it  operates  as  a  notice 
to  the  owner  to  at  least  the  extent  of  the  final  twenty-five 
per  cent;  and  such  claim,  so  filed,  by  the  express  provisions 
of  section  eleven  hundred  and  eighty-four,*'^  also  operates  to 
fix  a  lien  to  the  extent  of  any  other  payments  made  prior  to 
the  time  set  forth  in  the  section  or  in  the  contract,  at  least 
when  they  have  been  previously  garnished  by  notice  to  the 

«  Hughes  Bros.  v.  Hoover,  3  Cal.  App.  145,  84  Pac.  Rep.  681,  683. 
This  view  of  the  law,  however,  is  a  contracted  one,  and  not  in  conso- 
nance with  the  general  nature  and  effec^  of  the  garnisliment,  under 
the  decisions  of  the  supreme  court.  If  there  were  no  sum  paj-able 
from  the  owner  to  the  contractor,  upon  which  the  garnishment  could 
operate,  under  a  valid  contract,  the  liens  upon  the  property  must  also 
fail  for  lack  of  contractual  liability  upon  the  part  of  the  owner  to 
feed  them.  Unless  the  moneys  impounded  by  the  garnishment  share 
in  the  fund,  the  amounts  secured  by  the  claims  of  lien,  as  against  the 
fund,  being  decreed  to  be  a  lien  upon  the  property,  mucli  difficulty 
will  be  found  in  -^conciling  previous  decisions  of  the  supreme  court, 
and  great  confusion  will  be  introduced  into  what  heretofore  appeared 
to  be  a  somewhat  clearly  adjudicated  subject. 

"  Kerr's  Cyo.  Code  Civ.  Proc.,  §  1184. 

See  "  Payments,"  §§  269  et  seq..  ante. 

«  Kerr's  Cyc.  Code  Civ.  Proc,  §  1184. 


513  LL^BILITY   AS   FIXED   BY   NOTICE.  §  558 

owner.*®  And  the  property  of  the  owner  is  subject  to  the 
lien  to  that  extent,  whether  the  payment  is  made  before  or 
after  the  filing  of  the  claim  of  lien,  provided  such  payment 
be  made  before  the  final  payment  is  legally  due.*^ 

§  558.  Same.  Valid  statutory  original  contract.  In  con- 
nection with  the  subject  discussed  in  the  last  section,  the 
supreme  court  has  said:  "  The  [statutory  original]  contract 
must  be  so  made  as  to  require  payments  to  be  made  in  instal- 
ments, twenty-five  per  cent  of  which  must  be  payable  at 
least  thirty-five  days  after  final  completion  of  the  work  and 
contract.  When  such  a  contract  is  filed  for  record,  it  is 
notice  that  payments  are  to  be  made  as  therein  provided  for. 
If  the  twenty-five  per  cent,  wdiich  must  be  withheld  until 
after  the  claim  of  lien  is  filed,  is  sufficient  to  pay  his  claim, 
the  material-man  need  not  give  the  personal  notice  provided 
for,  and  thereby  stop  the  other  payments.  If  such  last 
instalment  will  not  be  sufiicient,  he  may  give  the  necessary 
notice,  which  compels  the  owner  to  withhold  other  payments. 
But  if  the  contract  is  not  filed  in  the  recorder's  office,  it  is 
not  only  void  by  the  express  terms  of  the  statute,  but  he  has 
no  notice  of  the  amount  of  payments  to  be  made,  or  w^hen 
they  will  fall  due,  or  at  what  time  he  is  required  to  give  the 
personal  notice.  As  a  penalty  for  not  affording  him  this 
means  of  knowledge  by  filing  such  a  contract  as  is  recpiirod 
by  the  statute,  the  ow-ner  is  deemed  to  have  contracted  for 
the  material,  so  far  as  the  right  to  the  lien  is  concerned,  and 
his  property  is  bound  for  the  value  of  such  material.  It 
seems  to  us  that  the  language  of  the  statute,  and  its  object 
and  purpose  in  this  respect,  are  too  plain  to  need  construc- 
tion." «° 

*«  See  Valley  L.  Co.  v.  Struck,   146  Cal.   266,   80  Pac.  Rep.   405.     Tliis 
last  is  probably  applicable  to  all  original  contracts. 

See  "  Payments,"  §§  269  et  seq.;  §§  251  et  seq. ;  §§  540  et  seq.,  ante. 
.  <»  Reed   v.    Norton,    90    Cal.    590,    602,    26    I'ac.    Rep.    767,    27    Id.    426; 
Davies-Henderson  L.  Co.  v.  Gottschalk,   81   Cal.   641,   646,   22   Pac.   Rep. 
860. 

'•"  Davies-Henderson   L.   Co.   v.   Gottschalk,    81    Cal.    641,    645,    22   Pac. 
Rep.  860. 

See    "Valid    Contract,"    §§315    et    seq.,    §§556    et    seq.,    ante;     "Void 
Contract,"   §§  319   et  seq.,   ante. 
Mech.  Liens  —  33 


§  559  mechanics'  liens.  514 

If  nothing  is  due  at  the  time  of  service,^^  or  subsequently 
becomes  due,°-  under  such  valid  contract,  the  claimant  has 
no  lien  upon  the  property  or  fund,  nor  any  claim  against 
the  owner,  by  reason  of  such  service  of  notice  merely.'"^  If 
the  owner  or  employer  makes  payments  in  good  faith,  in 
accordance  with  the  terms  of  a  valid  non-statutory  contract, 
before  receiving  the  notice,  the  contractor's  subclaimants 
cannot  enforce  their  liens,  except  for  the  balance,  if  any,  due 
the  contractor ;  ^*  and  such  payment  is  a  complete  discharge 
of  the  owner  or  emploj^er  to  that  extent. ^^ 

Abandonment.  Where  the  notice  is  once  served  on  the 
owner,  it  is  thought  that  a  subsequent  abandonment  of  a 
valid  contract  by  the  contractor  will  not  affect  the  right  of 
the  claimant  with  reference  to  moneys  due  at  the  time  of  the 
service  of  the  notice  by  him.^*^ 

§  559.  Same.  Void  statutory  original  contract.  In  con- 
nection with  void  statutory  original  contracts,  the  court  has 

51  Wig-gins  V.  Bridge,  70  Cal.  437,  439,  11  Pac.  Rep.  754.  See  Shuffle- 
ton  V.  Hill,  62  Cal.  483.  484,  6  West  Coast  Rep.  436;  Gibson  v.  Wheeler, 
110  Cal.  243,  245,  42  Pac.  Rep.  810;  Valley  L.  Co.  v.  Struck,  146  Cal.  266, 
273,  274,  80  Pac.  Rep.  405   (premature  payment). 

'"-  Wiggins  V.  Bridge,  70  Cal.  437,  438,  11  Pac.  Rep.  754.  See  Deni- 
son  V.  Burrell,  119  Cal.  180,  183,  51  Pac.  Rep.  1  (non-statutory  original 
contract). 

»3  Henley  v.  Wadsworth,  38  Cal.  356,  360   (1862). 

'^*  Wiggins  V.  Bridge,  70  Cal.  437,  438,  11  Pac.  Rep.  757;  Rosenkranz 
V.  Wagner,  62  Cal.  151,  154:  Dingley  v.  Greene,  54  Cal.  333,  335:  Wells 
V.  Cahn,  51  Cal.  423,  424;  McAlpin  v.  Duncan,  16  Cal.  126,  128  (1858); 
Knowles  v.  Joost,  13  Cal.  620,  621   (1856). 

In  Renton  v.  Conley,  49  Cal.  185,  187  (1868),  it  was  stated  that  tlie 
notice  might  be  "actual  or  constructive,"  the  court  saying  (p.  188), 
"  There  is  no  express  provision  limiting  the  lien  to  the  amount  which 
may  be  owing  from  the  owner  to  the  contractor  under  the  contract, 
in  any  case,  even  though  the  materials  were  furnished  and  the  labor 
performed  at  the  instance  of  the  contractor  alone."  The  statute  in 
this  case  did  not  provide  for  any  "actual  notice,"  but  only  notice  by 
record  of  claim  of  lien.  But  see  McCants  v.  Bush,  70  Cal.  125,  126,  11 
Pac.  Rep.  601;  Kellogg  v.  Howes,  81  Cal.  170,  177,  22  Pac.  Rep.  509,  6 
L.  R.  A.  588.  See  Latson  v.  Nelson  (Cal.),  11  Pac.  Coast  L.  J.  5S9; 
Tuttle  v.  Montford,  7  Cal.  358,  360  (1855). 

Xeva«la.  Contra:  Under  act  of  1875:  Hunter  v.  Truckee  Lodge.  14 
Nev.  24:    Lonkey  v.  Cook,  15  Nev.  58. 

See  notes,  §S  452  et  seq.,  ante. 

°s  McAlpin  V.  Duncan,  16  Cal.  126;  Kerckhoff-Cuzner  M.  Co.  v.  Cum- 
min gs.  86  Cal.  22,  26,  24  Pac.  Rep.  814. 

=«  Russ  L.  Co.  V.  Roggenkamp  (Cal'.,  Jan.  30,  1894),  35  Pac.  Rep.  643. 

See  "Abandonment,"  §§358  et  seq.,  anC  §§526  et  seq.,  ante. 


515  LIABILITY    AS   FIXED    BY    NOTICE.  §  560 

said:  "It  is  further  claimed  by  the  respondent  that  the 
judgment  of  the  court  below  was  right,  because  it  found  that 
the  personal  notice  provided  for  in  section  eleven  hundred 
and  eighty-four  of  the  Code  of  Civil  Procedure  was  not 
given.  The  notice  referred  to  was  not  necessary  in  this 
case.  Its  only  object  and  purpose,  as  indicated  by  the 
statute,  is  to  compel  the  owner  to  withhold  payments  due  the 
contractor,  for  the  better  security  of  the  material-man.  In 
this  case  there  was  no  contract,  and  no  payments  to  stop. 
Not  only  so,  but  the  statute  provides  that,  where  the  con- 
tract is  not  made  as  required  and  filed  in  the  recorder's 
office,  '  the  labor  done  and  materials  furnished  by  all  per- 
sons except  the  contractor,  shall  be  deemed  to  have  been 
done  and  furnished  at  the  special  instance  of  the  owner,  and 
they  shall  have  a  lien  for  the  value  thereof.'  "  "' 

§  560.  Same.  Non-statutory  original  contract.  The  notice 
to  the  owner  or  employer  provided  for  in  section  eleven 
hundred  and  eightj^-four  ^^  may  also  be  given,  where  the 

"  Davies-Henderson  L.  Co.  v.  Gottschalk,  81  CaL  641,  644,  22  Pac. 
Rep.  860,  citing-  Kellogg  v.  Howes,  81  CaL  170,  22  Pac.  Rep.  509,  6 
L.  R.  A.  588;  Southern  CaL  L.  Co.  v.  Schmitt,  74  Cal.  625,  16  Pac.  Rep. 
516. 

Kerr's  Cyc.  Code  Civ.  Proc.,  §  1183. 

See  "Liability  under  Void  Contract,"  §§319  et  seq.,  §§559  et  seq., 
ante. 

In  diMous-siug:  tlil.s  subject,  the  court  said:  "  If  the  contract  is  valid, 
then,  under  the  present  statute,  notice  must  be  given  of  his  claim  by 
the  material-man  or  laborer,  in  order  to  reach  the  moneys  due  the  con- 
tractor, and  if  he  fails  to  give  such  notice,  the  owner  is  protected  by 
the  statute,  as  held  in  the  cases  above  cited,  decided  under  former 
statutes.  [This  language  must  be  limited  to  certain  cases  of  non- 
statutory original  contracts,  and  probably  the  word  "  notice  "  is 
restricted  in  meaning  to  the  recorded  notice  or  claim  of  lien.]  But. 
where  there  is  no  valid  contract,  this  notice  is  unnecessary,  because 
there  are  no  payments  to  be  stopped,  and  the  statute  itself  is  notice  to 
the  owner  that  he  must  not  pay  to  the  contractor":  Kellogg  v.  Howes, 
81  Cal.  170,  177,  22  Pac.  Rep.  509,  6  L.  R.  A.  588. 

Notice  served  iipou  owuer  under  void  contract;  personal  judgment 
for  amount  due  under  the  terms  of  such  void  contract:  See  Hubbard 
V.  Lee  (Cal.  App.,  Oct.  11,  1907),  92  Pac.  Rep.  744. 

rtali.  Under  the  act  of  1890  it  was  held  that  as  the  lien  related 
back  to  the  time  of  commencing  to  furnish  the  material,  a  payment 
made  by  tlie  owner  to  the  contractor  subsequent  thereto,  but  before 
the  filing  of  the  claim  of  lien,  and  without  other  notice,  was  at  the 
peril  of  the  owner:  Carey-Lombard  L.  Co.  v.  Partridge,  10  Utah  322,  37 
Pac.  Rep.  572;  Morrison  v.  Carey-Lombard  L.  Co.,  9  Utah  70,  33  Pac. 
Rep.  238;  Teahen  v.  Nelson,  6  Utali   363,  23  Pac.  Rep.  764   (1888). 

^  Kerr's  Cyc.  Code  Civ.  I'roc,  §  1184. 


§  561  mechanics'  liens.  516 

contract  is  a  non-statutory  original  contract,  to  intercept 
money  in  the  hands  of  the  reputed  owner.^**  The  lien  of  sub- 
claimants  upon  the  property  of  the  owner  can  be  enforced 
for  all  sums  to  be  paid  to  the  contractor,  due  under  a  non- 
statutory original  contract  when  the  notice  is  given,^°  or  to 
become  due  thereafter.®^ 

§  561.  Same.  Effect  of  notice  on  payments  already  made 
or  assigned.  The  contractor  cannot  prevent  the  effect  of 
this  notice  as  to  any  payments  that  may  mature  after  it  is 
given,  but  its  effect  upon  payments  that  have  matured  before 
it  is  given,  which  have  not  been  made,  is  to  be  determined 
by  the  rights  of  the  contractor  in  reference  to  them.  If  he 
is  still  entitled  to  demand  their  payment  from  the  owner, 
such  payment  is  intercepted  by  the  notice;  but  if  he  has 
already-  assigned  them  to  a  third  party,  the  notice  will  be 
inoperative  to  prevent  their  payment  to  such  third  party."- 
In  this  connection,  the  court  has  said :  "  If  the  contractor, 
previous  to  the  giving  of  the  notice,  has  transferred  to 
another,  who  takes  the  assignment  for  value,  and  without 
notice  of  the  latent  equities  of  the  material-man,  the  amount 
then  actually  due  and  payable  on  the  contract,  there  is  then 
nothing  either  due  or  to  become  due  to  him,  and  there  is  no 
fund  on  which  the  notice  can  operate.  It  is  true  that  the 
statute  declares  that  a  material-man,  or  other  person  deal- 

5»  Kerckhoff-Cuzner  M.  Co.  v.  Cummings,  86  Cal.  22,  25,  24  Pac.  Rep. 
814  (under  $1,000).  See  Schmid  v.  Busch,  97  Cal.  184,  188,  31  Pac.  Rep. 
893. 

««  Blythe  V.  Poultney,  31  Cal.  233,  237;  Whittier  v.  Hollister,  64  Cal. 
283;  Russ  L.  &  M.  Co.  v.  Garrettson,  87  Cal.  589,  594,  25  Pac.  Rep.  747; 
Turner  v.  Strenzel,  70  Cal.  28,  30,  11  Pac.  Rep.  389;  Southern  Cal.  U 
Co.  V.  Jones,  133  Cal.  242,  245,  65  Pac.  Rep.  378. 

Colorado.  Jensen  v.  Brown,  2  Colo.  694;  Mclntyre  v.  Barnes,  4  Colo. 
285;  Tabor  v.  Armstrong-,  9  Colo.  285,  12  Pac.  Rep.  157  (Gen.  Laws, 
§  1657;  under  the  same  original  contract,  but  not  for  damages  suf- 
fered by   subcontractor). 

"  Davis  V.  Livingston,  29  Cal.  283,  291  (1862);  Blythe  v.  Poultney. 
31  Cal.  233,  237;  Whittier  v.  Hollister,  64  Cal.  283;  First  Nat.  Bank  v. 
Perris  Irr.  Dist.,  107  Cal.  55,  61,  40  Pac.  Rep.  45;  Russ  L.  &  M.  Co.  v. 
Garrettson,  87  Cal.   589,  594,   25  Pac.  Rep.   747. 

Colorado.     See  Jensen  v.  Brown,  2  Colo.  694. 

"-  Newport  W.  &  .L.  Co.  v.  Drew,  125  Cal.  585,  589,  58  Pac.  Rep.  187. 
See  Bates  v.  Santa  Barbara  County,  90  Cal.  543,  27  Pac.  Rep.  438;  First 
Nat.  Bank  v.  Perris  Irr.  Dist..  107  Cal.  55,  40  Pac.  Rep.  45. 

Payment  by  owner  not  invalid  as  to  lien-liolders  who  had  not  given 
previous  notice  of  their  claims,  as  provided  In  §  11S4,  Kerr's  Cyc.  Code 
Civ.  Proe.:     Valley  L.  Co.  v.  Struck,  146  Cal.  266,  270,  80  Pac.  Rep.  405. 


517  LIABILITY   AS   FIXED    BY   NOTICE.  §  561 

ing  with  the  contractor,  may  give  the  notice  '  at  any  time  ' ; 
but  this  expression  must  be  construed  in  connection  with 
the  other  provisions  relating  to  the  subject,  and  the  general 
scheine  of  the  code  chapter  of  which  they  form  a  part.  That 
chapter  contemplates  throughout  that  the  privileges  it  allows 
to  those  Avho  furnish  material  or  labor  for  the  construction  of 
buildings  and  other  improvements  shall  be  exercised  with 
promptitude,  and  so  as  not  to  hamper  either  the  owner  or  the 
contractor,  or  those  who  deal  with  them,  in  the  free  dis- 
position of  the  property  rights  affected  by  or  arising  from 
the  contract,  beyond  such  time  as  may  be  convenient  for  the 
assertion  of  those  privileges.  It  cannot  be  supposed  that  the 
legislature,  Avhile  requiring  a  portion  of  the  contract  price 
to  be  withheld  from  the  contractor  for  the  period  of  only 
thirty-five  days  after  the  completion  of  the  contract,  and 
making  it  incumbent  on  the  material-man  desirous  of  acquir- 
ing a  lien  to  give  public  notice  thereof  by  filing  his  verified 
claim  therefor  in  the  proper  office  within  thirty  days  from 
the  actual  or  presumed  completion  of  the  structure  or  other 
work,  and  to  begin  his  action  in  the  proper  court  for  the 
enforcement  of  his  claim  within  ninety  days  following  the 
filing,  yet  designed  that  the  same  material-man  may,  Avithout 
imparting  notice  in  any  manner  to  the  public,  retain  a 
latent  lien  for  an  indefinite  time  after  completion  of  the 
contract,  and  after  payment  is  due  thereunder,  on  the  com- 
pensation earned  by  the  contractor,  and  that  this  secret 
equity  '  may  at  any  time  '  be  asserted,  not  only  against  the 
contractor,  but  also  against  those  who  have  acquired  his 
property  interests  therein  by  assignment  or  otherwise.  We 
hold  in  this  behalf:  1.  That  the  right  of  the  intervener  to 
give  the  notice  of  its  demand,  and  thus  to  charge  the  con- 
tract price  in  the  hands  of  the  owner,  was  not  affected  by 
any  assignment  made  by  the  contractor  until  after  the  time 
when  the  demand  assigned  became  due,  —  in  this  case  upon 
the  expiration  of  thirty-five  days  from  the  completion  of  the 
contract;  2.  That  the  assignment  made  by  the  original 
contractor,  the  Silver  Gate  Manufacturing  Company,  to  the 
^tna  Iron  and  Steel  Company.  l)efore  the  completion  of  the 
work,  vested  the  latter  company,  prior  to  the  expiration  of 
thirty-five  days  from  the  date  of  such  completion,  with  no 


§  562  mechanics'  liens.  518 

rights  anywise  different  from  or  superior  to  those  of  the 
original  contractor,  nor  even  then,  if  such  assignment  was 
made  as  part  of  a  mere  substitution  of  the  JEtna.  company 
for  the  contractor  in  the  original  contract,  —  a  matter  on 
which  the  findings  are  not  clear;  3.  But  that  the  assign- 
ment by  the  ^tna  Iron  and  Steel  Company  to  the  plaintiff 
of  the  contract  price,  or  the  balance  thereof,  and  notice  to 
defendant  of  such  assignment  after  the  balance  was  due  and 
payable  under  the  terms  of  the  contract,  cut  off  all  rights 
of  the  intervener  in  the  funds  so  assigned,  and  any  notice 
afterward  given  by  the  intervener  was  futile,  provided  the 
plaintiff  took  such  assignment  for  value,  and  without  notice 
of  the  unpaid  demand  of  the  intervener.  We  think  such 
proviso  just ;  if  the  plaintiff  was  a  mere  volunteer,  or  trustee 
for  the  JEitiia  company,  or  did  not  render  value  for  the 
assignment,  there  is  no  reason  why  it  should  not  stand  pre- 
cisely in  the  shoes  of  its  assignor,  subject  to  any  right  of  the 
intervener,  within  the  doctrine  asserted  in  Bush  v.  Lathrop."^ 
This  qualification  of  the  immunity  of  th'^  assignee  is  com- 
monly found  in  the  authorities  which,  with  the  better  reason, 
as  it  seems  to  us,  affirm  the  right  of  the  assignee,  in  good 
faith  and  for  value,  to  take  the  subject  of  the  assignment 
free  from  the  latent  equities  of  third  persons."  ^^ 

§  562.  Same.  Payment  by  note.  If  the  transferee  of  a 
promissor,y  note  is  an  innocent  purchaser  for  value,  and 
without  notice  of  the  demands  of  the  contractor's  subclaim- 
ants,  and  the  note  is  secured  by  an  assignment  of  moneys  to 
become  due  from  the  owner  of  the  building,  and  such  claim- 
ants give  no  notice  to  the  owner  until  after  the  expiration 
of  thirty-five  days  from  the  completion  of  the  work,  and 
until  after  such  transfer  of  the  note  and  security,  the  right 
of  such  transferee  in  the  fund  due  from  the  owner  is  superior 
to  that  of  the  subclaimants."^ 

«3  Bush  V.  Lathrop,  22  N.  Y.   (8  Smith)   535. 

"  First  Nat.  Bank  v.  Ferris  Irr.  Dist.,  107  Cal.  55,  62-64,  40  Pac.  Rep. 
45  (statutory  original  contract),  citiii§r  Wright  v.  Levy,  12  Cal.  257,  and 
other  cases. 

And  see  Kerr's  Cyc.  Code  Civ.  Proc..'§§  368,  440,  and  notes;  Kerr's 
Cye.  Civ.  Code,   §  14r)9.   and   note. 

But  see  discussion  and  criticism,   §  595,  post. 

«5  Perry  v.  Parrott,  135  Cal.  238,  245,   67  Pac.  Rep.   144. 


519  LIABILITY   AS   FIXED   BY    NOTICE.  §  563 

§  563.  Same.  Relation  to  provision  as  to  premature  pay- 
ments. It  has  been  held,  subject  to  several  later  criticisms, 
tliat  the  provision  as  to  notice  to  the  owner  is  entirely  sepa- 
rate and  distinct  from  the  provision  invalidating  payments 
prematurely  made ;  that  the  proceeding  under  the  notice  is  in 
the  nature  of  a  garnisliment,  whereby  there  is  impounded 
specific  moneys  due  or  thereafter  to  become  due  to  the  eon- 
tractor;  and  that  the  provision  of  the  law  as  to  premature 
payments  is  not  made  to  depend  upon  the  giving  of  or  fail- 
ure to  give  notice."'* 

It  has  also  been  held  that,  under  a  valid  contract,  where 
payments  are  made  by  the  owner  of  the  building  to  the  con- 
tractor before  the  same  are  due,  it  is  not  necessary,  in  order 
that  the  subclaimant  may  recover  the  sums  paid,  that  he 
should  have  given  the  notice  required  by  section  eleven  hun- 
dred and  eighty-four ;  "^  the  court  saying,  "  The  posit-ion 
of  respondents  is  based  upon  another  portion  of  section 
eleven  hundred  and  eighty-four,"^  which  allows  a  notice  to 
be  served  upon  the  reputed  owner  by  a  material-man  or 
other  creditor,  which  has  the  effect  of  stopping  the  payment 
of  further  moneys  to  the  contractor.  That  provision  of  the 
law  is  not  applicable  here,  and  in  no  way  weakens  or  limits 
the  effect  to  be  given  the  other  part  of  the  same  section 
which  we  have  already  quoted";"^  i.  e.,  that  a  premature 
payment  shall  be  deemed  as  if  rot  made,  etc.  It  is  to  be 
noted  that  the  supreme  court  of  California  has  finally  stated 
that  premature  payments  are  not  invalid  as  against  lien- 
holders  who  have  given  no  notice  to  the  owner,  except  as  to 

«°  Sweeney  v.  Meyer,  124  CaL  512,  514,  57  Pac.  Rep.  479. 

Criticism  of  doctrine.  But  this  latter  doctrine  was  subjected  to 
criticism  in  the  concurring  opinion  of  Shaw,  J.  (Beatty,  C.  J.,  and  An- 
gellotti,  J.,  concurring),  in  Valley  L.  Co.  v.  Struck,  146  Cal.  266,  80  Pac. 
Rep.  405,  holding  that  Sweeney  v.  Meyer,  supra,  should  be  overruled, 
and  that  only  in  cases  where  notice  had  been  served  upon  the  owner 
before  premature  paj'nient,  except  in  the  case  of  the  final  payment  of 
twenty-flve  per  cent  thirty-five  days  after  completion  of  tlie  building, 
required  by  the  statute,  such  premature  payments  were  not  affected 
by  the  mere  filing  of  a  claim  of  lien  without  such  notice.  See  Dunlop 
V.  Kennedy   (Cal.,  Aug.  31,  1893),  34  Pac.  Rep.  92   (rehearing  granted). 

"  Kerr's   Cyc.   Corte   Civ.   Proc,   §  1184. 

•*  Kerr'.«f   Cyc.   Code   Civ.   Proc,   §  1184. 

'■"  Ganalil  v.  Weir,  liio  Cal.  :;37,  239,  62  Pac.  Rep.  512  (question  of 
pleading). 


§  563  mechanics'  liens.  520 

the  final  instalment  of  twenty-iive  per  cent  to  be  paid  in 
thirty-five  days  after  the  completion  of  the  building,  as 
required  by  the  statute. ^*^ 

Waiving  certificate  of  architect.  Under  the  rule  last 
stated,  the  owner  has  no  power  to  waive  a  certificate,  which 
was  one  of  the  conditions  of  maturity  of  the  payment,  as 
against  claimants  of  liens  who  had  garnished  the  payment 
by  notice,  but  the  premature  payment  was  not  invalid  as 
against  lien-holders  who  had  given  no  such  notice.'^'^ 

'»  VaUey  L.  Co.  v.  Struck,  146  Cal.  266,  272,  80  Pac.  Rep.  405,  per 
Shaw,  J.  (Beatty,  C.  J.,  and  Angellotti,  J.,  concurring-  in  liolding-  that 
Sweeney  v.  Meyer,  124  Cal.  512,  57  Pac.  Rep.  479,  should  be  overruled). 

"  Valley  L.  Co.  v.  Struck,  146  Cal.  266,  272,  80  Pac.  Rep.  405,  per 
Shaw,  J.  (Beatty,  C.  J.,  and  Angellotti,  J.,  concurring  in  holding-  that 
Sweeney  v.  Meyer,  124  Cal.  512,  57  Pac.  Rep.  479,  should  be  overruled 
on  this  point). 

In  the  concurring  opinion  of  Shaw,  J.,  in  Valley  L,.  Co.  v.  Struck,  146 
Cal.  266,  274,  80  Pac.  Rep.  405,  quoting  from  the  dissenting  opinion  of 
Beatty,  C.  J.,  filed  in  the  former  hearing  in  bank,  it  was  said:  "By 
tlie  mechanic's-lien  law  the  owner  and  contractor  are  authoi-ized  to 
stipulate  for  the  payment  of  three  fourths  of  the  contract  price  of  a 
building  by  instalments  to  become  due,  at  their  option,  at  or  before 
its  completion,  but  no  notice  of  lien  can  be  recorded  until  after  com- 
pletion, and  consequently  no  lien  can  be  acquired  upon  tlie  building- 
by  merely  recording  notice  for  any  greater  portion  of  tlie  contract 
price  than  the  twenty-five  per  cent,  which  must  be  made  payable  not 
less  than  thirty-five  days  after  completion,  unless  the  owner  and  con- 
tractor voluntarily  agree  that  a  larger  proportion  may  be  retained 
until  after  the  time  when  the  lien  notices  may  be  recorded.  But  the 
law  also  provides  for  personal  and  actual  notice  to  the  owner  by  a 
laborer  or  material-inan  of  liis  claim,  at,  or  at  any  time  after,  the  time 
it  accrues,  irrespective  of  the  completion  of  the  building,  and  this 
notice  operates  as  a  garnishment  to  intercept  the  payment  of  any 
instalment  of  the  contract  price  not  then  due  by  the  terms  of  the  con- 
tract, compelling  the  owner  to  withhold  a  sufficient  sum  to  answer 
sucli  claiin  and  costs.  Upon  due  service  of  such  notice,  the  owner 
becomes  liable  to  the  extent  of  all  money  to  become  due  iipon  the 
contract,  and  in  the  event  that  a  notice  of  lien  Is  afterwards  duly 
recorded  by  the  claimant,  his  building-  is  subjected  to  a  lien  as  security 
for  the  just  amount  of  the  claim,  and  that  notwithstanding  he  may 
have  made  a  premature  payment  upon  the  contract  price  before  the 
receipt  of  notice.  But  this  is  as  far  as  the  statute  goes.  It  does  not 
make  the  premature  payment  of  an  intermediate  instalment  of  the 
contract  price  invalid  as  to  all  material-men,  laborers,  etc.,  but  only 
when  the  effect  of  allowing-  its  validity  would  be  to  defeat,  diminish, 
or  discharge  a  lien  in  favor  of  persons  other  than  the  contractor.  So 
that  if  it  is  an  essential  condition  prerequisite  to  the  creation  of  a  lien 
upon  the  building  for  any  portion  of  a  particular  instalment  of  the 
contract  price,  written  notice  of  the  claim  should  be  served  upon  the 
owner  before  payment  is  due,  and  if  no  sucli  notice  is  served,  a  pre- 
mature payment  of  such  instalment  does  not  defeat,  diminish,  or  dis- 
charge the  lien,  —  there  is  no  lien  to .  defeat  or  impair, — and  the 
failure  of  the  security  is  due,  not  to  the  fault  of  the  owner,  but  to  the 
default  of  the  claimant  who  has  omitted  to  take  the  step  made  essen- 


521  LIABILITY   AS   FIXED   BY   NOTICE.  §  564 

§  564.     Same.     Service  of  notice  on  public  trustees.    And 

although  a  public  body,  such  as  a  board  of  education,  is  not 
subject  to  garnishment,"  yet  a  material-man  or  mechanic 
who  furnishes  materials  to  or  does  work  for  the  contractor 
on  a  county  building,  upon  giving  written  notice  to  the 
county  of  his  claim  as  provided  by  section  eleven  hundred 
and  eighty-four,"  acquires,  as  against  the  contractor,  a 
prior  right  of  payment  of  his  claim  from  the  unpaid  portion 
of  the   contract  price ;  the   court   saying,   "  It   is  the   only 

tial  by  the  stat^ite  for  the  acquisition  of  a  lien.  His  lien  has  not  been 
discharged  or  defeated  or  diminished  by  the  premature  payment,  be- 
cause it  has  never  come  into  existence.  If  a  payment  is  due  on  the 
19th,  and  a  material-man  desires,  for  his  better  security,  to  have  it 
withheld  by  the  owner,  he  must  give  notice  of  his  claim  before  the 
19th,  or  the  owner  may  make  payment  with  perfect  assurance  that  he 
will  not  have  to  pay  again  on  account  of  the  material-man's  claim,  as 
the  latter  well  knows.  But  if  lie,  with  this  knowledge,  omits  to  give 
the  notice  [the  present  case],  what  right  then  has  he  to  complain  that 
payment  was  made  on  the  17th?  He  is  no  worse  off  than  he  would 
have  been  if  it  had  not  been  made  till  the  19th.  His  notice  of  lien 
subsequently  filed  attaches  to  the  last  payment  due  thirty-five  days 
after  completion  of  the  building,  but,  according  to  the  Intent  no  less 
than  the  langiiage  of  the  statute,  It  does  not  attach  to  any  previous 
instalment  not  garnished  by  actual  notice  before  it  fell  due. 

"  The  decision  in  Sweeney  v.  Meyer  resulted,  in  my  opinion,  from 
the  assumption  that  the  provisions  of  the  statute  as  to  notice  to  tlie 
owner  and  invalidity  of  premature  payments  are  separate  and  inde- 
pendent. They  are  indeed  separate,  as  every  clause  of  every  statute  is 
necessarily  separate  from  other  clauses,  but  that  they  are  independent 
I  cannot  admit.  They  are  related  parts  of  one  general  scheme,  de- 
signed to  be  complete  and  harmonious,  operating  for  the  benefit  of 
laborers,  mechanics,  and  material-men,  without  injustice  to  owners 
of  property.  Upon  each  class  a  duty  is  imposed,  and  the  performance 
of  this  duty  is  the  condition  of  enjoying  the  rights  conferred.  To 
intercept  a  payment  and  secure  a  lien,  notice  of  the  claim  must  be 
served  before  payment  is  due.  To  give  the  amplest  opportunity  for 
service  of  notice,  the  owner  must  make  no  payment  until  it  is  due 
according  to  the  terms  of  his  recorded  contract.  If  he  makes  a  pre- 
mature payment,  he  does  it  at  the  risk  of  having  to  pay  twice,  but  he 
incurs  this  liability  only  in  case  of  a  timely  notice.  If  no  notice  is 
given,  there  is  no  lien,  and  to  hold  the  payment  valid  harms  no  one." 

"  Board  of  Education  v.  Blake  (Cal.,  Dec.  3,  1894),  3<S  Pac.  Rep.  ,536: 
French  v.  Powell,  13.5  Cal.  636,  642,  68  Pac.  Rep.  92.  The  lower  court 
was  ordered  to  distribute  the  balance  of  tlie  money  to  a  garnishing 
creditor  because  the  board  liad  voluntarily  deposited  the  money  into 
court,  and  the  parties  had  been  interpleaded:  See  Skelly  v.  School 
Dist..  103  Cal.  652,  659,  37  Pac.  Rep.  643. 

Colorado.     Florman  v.  School  Dist.,  6  Colo.  App.  319.  40  Pac.  Rep.  469. 

AVsishingtoii.  Filing  notice  of  claim  with  municii)al  body,  undei- 
Ballinger's  Ann.  Codes  and  Stats.,  §§  5925.  5927,  as  amended  by  I^aws 
1899,  ch.  cv.  p.  172,  condition  precedent:  See  Huggins  v.  Sutherland, 
39  Wash.   552,   82   Pac.   Rep.   112    (pleading). 

»  Kerr's  C>c.  Code  Civ.  Proc.,  §  1184. 


§  564  mechanics'  liens.  522 

remedy  provided  by  the  lien  law,  because  the  pursuit  of 
the  remedy  by  foreclosure  would  involve  the  taking  of  build- 
ings which,  on  the  ground  of  public  policy  and  public  neces- 
sity, are  exempt  from  execution  and  forced  sale.  And  this 
remedy  is  one  which  does  not  contravene  any  principle  of 
public  policy.  It  operates  as  an  assignment  pro  tanto  of 
the  money  due  by  the  owner  to  the  contractor,  and  in  no 
way  affects  the  public  buildings.  The  fund  is  in  the  treasury, 
and  the  statute  justly  provides  that  instead  of  paying  it  to 
the  contractor  for  the  work  which  he  agreed  to  do,  but 
which  the  laborer  has  actuallj"  performed,  the  owner  shall 
pay  it  to  the  latter."  '^^ 

A  notice  given  to  trustees  of  a  state  building,  by  a  sub- 
claimant,  is  equivalent  to  a  garnishment  of  the  moneys  pay- 
able to  the  contractor,  and  operates  as  a  notice  to  intercept 
any  payments  that  may  mature  after  it  is  given,  as  well  as 
those  then  due ;  but  its  effect  on  payments  that  have  matured 
before  it  is  given,  but  which  have  not  been  made,  is  deter- 
mined by  the  rights  of  the  contractor  in  reference  thereto. 
If  he  is  still  entitled  to  demand  their  payment  from  the 
owner  or  trustees,  such  payment  is  intercepted  by  the  notice ; 
if,  however,  he  has  already  assigned  them  to  a  third  party, 
the  notice  will  be  inoperative  by  reason  of  their  payment  t:» 
such  party.'^^ 

Besides  the  remedy  on  the  bond,  given  under  act  of  March 
27.  1897,'*^  by  a  contractor  on  state  and  other  public  build- 
ings, laborers  and  material-men  have  recourse  also  to  section 
eleven  hundred  and  eighty-four,^^  by  which  they  get  an 
additional  security  by  lien  upon  the  fund,  although  not  upon 
the  land.''^ 

'*  Bates  V.  Santa  Barbara  Co.,  90  Cal.  543,  547,  27  Pac.  Rep.  4.'?8; 
Ru.ss  L.  &  M.  Co.  V.  Rogg-enkamp  tCal.,  Jan.  30,  1894),  35  Pac.  Rep.  643. 

For  statute.s  in  relation  to  public  -work,  see  §  102,  ante,  and  "  Sure- 
ties," §§  605  et  seq.,  post. 

Colorado.  Control  by  equity  of  funds  in  tlie  hands  of  the  board, 
due  to  contractor:  See  Florman  v.  School  Dist.,  6  Colo.  319,  40  Pac.  Rep. 
469. 

"  Newport  W^  &  L.  Co.  v.  Drew,  125  Cal.  585,  58  Pac.  Rep.   187. 

'«  Stats.  1897,  p.  201. 

"  Kerr's  Cyc.  Code  (Div.  Proc,  §  1184. 

'8  French  v.  Powell,  135  Cal.  636,  642,'  68  Pac.  Rep.  92. 


523  LIABILITY    AS   FIXED    BY    NOTICE.  §§  565-567 

§  565.  Time  of  giving  notice.  The  subclaimant  may  give 
the  notice  to  the  reputed  owner  "  at  any  time  "  before  the 
money  becomes  due  according  to  the  contract,  and  no  assign- 
ment made  by  the  contractor  of  the  amount  to  become 
afterwards  due  to  him  in  the  course  of  performance  of  the 
contract  can,  before  the  arrival  of  the  time  of  payment, 
defeat  the  right  of  the  subclaimant  to  give  the  statutory 
notice  and  obtain  the  benefit  thereof;  otherwise  the  provis- 
ions of  the  statute  in  this  regard  could  in  most  instances  be 
evaded.''*  And  the  notice  may  be  effectually  given,  so  long  as 
money  is  owing  to  the  contractor  himself,  although  the  time 
when  it  should  have  been  paid  has  passed,*"  and  as  long  as 
the  fund  is  in  the  hands  of  the  owner,  reputed  owner,  or 
employer,  and  even  after  the  expiration  of  the  thirtj'-five 
days  after  the  completion  of  a  valid  statutory  original  con- 
tract.*^ 

§  566.  Joint  contractors.  Apportionment.  Where  joint 
contractors,  under  a  non-statutory  original  contract,  appor- 
tion the  compensation  under  the  contract  between  them- 
selves, by  an  arrangement  to  which  the  owner  is  not  a 
party,  it  is  no  defense  that  when  notice  was  served  there 
was  nothing  due  the  contractor  to  whom  the  materials  were 
furnished  under  the  apportionment  agreed  upon.*- 

§  567.  Action  on  notice.  By  the  service  on  the  owner  of 
the  notice  prescribed  \}y  the  statute,  the  claimant  has  a  lien 
or  charge  upon  the  fund  or  amount  due  and  unpaid  to  the 
contractor,  remaining  in  the  owner's  hands,  and  it  may  be 
reached  by  an  equitable  suit,  without  a  lien  upon  the  land, 
and  a  writ  of  review  will  not  lie  against  the  superior  court 
in  such  case,  even  though  the  amount  claimed  is  less  than 
three  hundred  dollars.*^ 

"  First  Nat.  Bank.  v.  Ferris  Irr.  Dist.,  107  Cal.  55,  61,  40  Pac.  Rep. 
45;    French  v.  Powell,  135  Cal.  636,  642,  68  Pac.  Rep.  92. 

*"  First  Nat.  Bank  v.  Ferris  Irr.  Dist.,  supra;  Board  of  Education  v. 
Blake   (Cal.,  Dec.  3,   1894),   38  Pac.  Rep.  536. 

See  §§  585  et  seq.,  post. 

"  Board  of  Education  v.  Blake  (Cal.,  Dec.  3,  1894),  38  Pac.  Rep.  536. 

"-  Davis  V.  Livingston,  29  Cal.  283,  290  (the  court  lays  stress  upon 
the  fact  that  the  employer  gave  a  verbal  assent  without  consider- 
ation). 

"  Weldon  v.  Superior  Court,   138  Cal.  427.  71  Pac.  Rep.  502. 


§§  568, 569  mechanics'  liens.  524 

§  568.     Form  and  contents  of  notice.^*    Construction.    The 

notices  required  to  be  given  under  the  statute  have  regard 
to  substance,  rather  than  to  form,^^  being  remedies  which 
should  be  favored  by  the  courts.^*'  And  "  no  such  notice 
shall  be  invalid  by  reason  of  any  defect  of  form,  provided 
it  is  sufficient  to  inform  the  reputed  owner  of  the  substan- 
tial matters  herein  provided  for,  or  to  put  him  on  inquiry  as 
to  such  matters."  " 

vj  569.  Same.  Effect  of  several  notices  served.  Under 
a  previous  statute  it  was  held  unnecessary  to  return  the 
notice,  or  to  object  to  its  sufficiency  at  the  time  it  was  served, 
nor  did  a  failure  to  pursue  either  of  these  courses  operate  as 
a  waiver  of  all  defects.  The  notice  is  in  invitum,  looking  to 
an  attachment  under  the  statute,  and  the  question  is  not  as 
to  what  the  owner  failed  to  do,  but  as  to  what  the  claimant 
did;  and  it  was  held  that  if  the  subclaimant  served  more 
than  one  notice  for  the  same  account,  the  several  notices 
could  not  be  considered  together  for  the  purpose  of  deter- 
mining the  sufficiency  of  notice  to  the  owner,  but  that  each 
must  stand  on  its  own  merits,  and  a  lien  will  not  exist  by 
reason  of  such  notice,  nor  the  OAvner  be  affected  by  notice, 
unless  one  notice  is  sufficient. ^^     Each  notice  was  considered 

"  Comitare:    "Claim  of  Lien,"  §§  370  et  seq.,  post. 

Colorado.  Service  (act  of  18S9)  by  giving  copy  to  clerk  of  super- 
intendent of  corporation  is  not  service  upon  the  owner,  agent,  or 
trustee,  required  by  act:  Union  Pac.  R.  Co.  v.  Davidson,  21  Colo.  93,  39 
Pac.   Pcop.   1095. 

"  Corbett  v.  Chambers,  109  Cal.  178,  184,  41  Pac.  Rep.  873.  See 
McGinty  v.  Morgan,  122  Cal.  103,  105,  54  Pac.  Rep.  392;  Continental  B. 
&  L.  Assoc.  V.  Hutton,  144  Cal.  609,  611,  78  Pac.  Rep.  21. 

*«  Bates  V.  Santa  Barbara  Co.,  90  Cal.  543,  27  Pac.  Rep.  438;  Board 
of  Education  v.  Blake  (Cal.,  Dec.  3,  1894),  38  Pac.  Rep.  536. 

"   Kerr's  Cyc.  Code  Civ.  Proc.,  §  1184. 

Under  act  of  186^  it  was  held  that  the  provision  as  to  the  notice 
must  be  strictly  complied  with,  there  being  no  provision  as  to  con- 
struction:   Davis  v.  Livingston,   29   Cal.    283,   287. 

See  "  Construction,"  §§  24  et  seq.,   §§  371   et  seq.,  ante. 

The  present  provision  as  to  notice,  it  should  be  borne  in  mind,  has 
an  essentially  different  object,  in  part,  as  fully  discussed  in  §  550,  ante. 
It  would  seem  that,  as  in  the  case  ot  the  claim  of  lien,  nothing  need 
be  inserted  in  the  notice  except  what  is  required  by  the  statute:  See 
Davis  V.  Livingston,    29   Cal.   283,   288. 

See  also  "Claim  of  Lien,"  §§  361  et  seq.,  ante. 

^  Davis  V.  Livingston,  29  Cal.  283,  288  (under  act  of  1862,  requir- 
ing written  notice  to  the  employer  of  the  original  contractor  of  the 
nature  and  extent  of  their  claims  against  the  original  contractor  or 
his  assigns,  over  and  above  all  payments,  etc.). 


525  LIABILITY   AS   FIXED   BY   NOTICE.  §  570 

absolutely,  and  not  relatively  under  the  act,  and  hence  error 
in  a  previous  notice  did  not  vitiate  a  subsequent  notice.'*'* 

How  far  these  rules  are  applicable  to  section  eleven  hun- 
dred and  eighty-four  ^°  does  not  appear.  The  provision 
of  this  section,  that  if  the  notice  is  sufficient  to  put  the  owner 
"  upon  inquiry  as  to  such  matters,"  the  statute  is  satisfied, 
seems  to  modify  the  doctrines  just  stated. 

§  570.  Same.  Statutory  requirements  of  notice.  The  five 
requirements  of  the  notice,  under  section  eleven  hundred  and 
eighty-four,**^  will  be  considered  in  order. 

1.  That  the  claimant  has  "  performed  labor  or  furnished 
materials,  or  both,  to  the  contractor,  or  other  person  acting 
by  authority  of  the  reputed  owner,  or  that  they  have  agreed 
to  do  so."  It  was  held,  under  the  act  of  1862,  that  the  want 
of  signature  to  the  notice  vitiated  the  notice,  even  if  it 
purported,  in  the  body  of  the  notice,  to  come  from  the  claim- 
ant.'-'- But  as  such  a  notice  may  be  sufficient  to  put  the 
owner  "  upon  inquiry "  under  the  present  provision,  as 
shown  above,  it  may  be  doubted  whether  this  ruling  will 
be  followed. 

2.  "  In  general  terms  the  kind  of  labor  and  materials." 
Where  the  notice  states  in  general  terms  the  kind  of  mate- 
rials, it  is  sufficient  to  satisfy  this  provision.®^ 

3.  "  The  name  of  the  person  to  or  for  whom  the  same  Avas 
done  or  furnished,  or  both."     If  the  notice  states  that  the 

«»  Davis  V.  Livingston,  29  Cal.  283. 

»»  Kerr's   Cye.  Code  Civ.  Proe.,   §  1184. 

»>   Kerr's  Cye.  Code  Civ.  Proc.,  §  1184. 

"  Davis  V.  Livingston,  29  Cal.  283,  288.  It  was  said  that  it  was  not 
shown  to  be  in  the  claimant's  handwriting-,  "and  if  that  fact  had 
appeared,  no  authorities  are  adduced  to  show  that  the  want  of  a  sig- 
nature would  have  been  cured  thereby."  The  statute,  however,  did 
require  the  notice  to  be  signed. 

»3  Russ  L.  &  M.  Co.  V.  Garrettson,  87  Cal.  589,  .594,  25  Pac.  Rep.  747. 

Under  act  of  1S(J2  it  was  held  that  tlie  notice  was  not  required  to 
state  the  particular  character  of  the  materials  furnished,  nor  that  the 
materials  were  used  in  constructing  a  building,  nor  of  what  the  mate- 
rials named  in  the  notice  consisted:  Davis  v.  Livingston,  29  Cal.  283, 
288. 

The  act  of  1862  did  not  expressly  require  tlie  character  of  the 
materials  to  be  stated,  but  only  the  "  nature  and  extent  of  tlie  claim," 
which  "  may  as  well  be  understood  witliout  the  aid  of  such  details,  as 
with  it."  The  notice  stated:  "We  have  furnislied  and  supplied  the 
following  materials  as  hereinafter  set  forth  for  the  erection,"  etc. 
but  the  materials  were  not  "  set  forth  "  therein.    See  note  following. 


§  571  mechanics'  liens.  526 

materials  were  furnished  at  the  instance  and  request  of  the 
contractors,  naming  them,  it  is  sufficient.^* 

4.  "  The  amount  in  value,  as  near  as  may  be,  of  that 
already  done  or  furnished,  or  both."  The  expression 
"  amount  in  value  "  seems  to  mean  the  price  or  agreed  value, 
in  case  where  there  is  an  agreed  value. ''^ 

5.  If  it  states  that  "  the  amount  agreed  to  be  paid  for  all 
thereof  "  is  a  certain  sum,  or  if  it  states  the  total  price  of  the 
materials,  it  is  sufficient.^® 

§  571.  Same.  Sufficiency  of  notice.  Under  the  provision 
as  to  notice  contained  in  section  eleven  hundred  and  eighty- 
four,^^  where  the  notice  stated  in  general  terms  the  kind  of 
materials;  that  they  were  furnished  at  the  instance  and  re- 
quest of  the  contractors,  naming  them;  that  the  amount 
agreed  to  be  paid  for  all  thereof  was  a  certain  sum,  —  it  was 
held  sufficient.^^ 

«<  Russ  L.  &  M.  Co.  V.  Garrettson,  87  Cal.  589,  594,  25  Pac.  Rep.  747.. 

Under  act  of  18G2  it  was  held  that  if  there  are  several  contractors, 
the  notice  is  sufficient  if  the  name  of  one  of  them  be  given:  Davis  v. 
Living-ston,  29  Cal.  283,  289.  "The  failure  to  name  the  two  co-con- 
tractors does  not  very  clearly  go  to  the  '  nature  of  the  claim '  [re- 
quired to  be  stated  by  the  statute],  and  even  if  it  does,  it  is  but  a 
false  description,  which  is  set  right  by  the  other  statements  in  the 
notice":  Russ  L.  &  M.  Co.  v.  Garrettson,  supra. 

»=  See  Jewell  v.  McKay,  82  Cal.  144,  150,  23  Pac.  Rep.  139  (dictum, 
so   far  as  notice  is  concerned). 

»«  Russ  L.  &  M.  Co.  V.  Garrettson,  87  Cal.  589,  594,  25  Pac.  Rep.  747. 
See  Davis  v.  Livingston,  29  Cal.  283,  287. 

See  "  Claim,"  §§  375  et  seq.,  ante. 

Oregon.  Previous  transfers  of  or  liens  upon  the  fund  actually 
due  to  the  contractor  from  a  railroad  company  at  the  time  notice  is 
served  under  Laws  1889,  p.  75,  will  taKe  precedence  over  such  notice: 
Coleman  v.  Oregonian  R.  Co.,  25  Oreg.  2S6,  35  Pac.  Rep.  656. 

Such  notice  attaches  only  for  the  amount  actually  due  at  the  time 
such  notice  is  served:  Ban  v.  Columbia  S.  R.  Co.,  109  Fed.  Rep.  499,  54 
C.  C.  A.   407,  reversing  s.  c.  109  Fed  Rep.   499. 

9'  Kerr's  Cyc.  Ck>de  Civ.  Proc,  §  1184. 

»8  Russ  L.  &  M.  Co.  V.  Garrettson,  87  Cal.  5S>9,  594,  25  Pac.  Rep.  747. 


527  AGENCY.  §  572 


CHAPTER    XXVIII. 

AGENCY. 

§  572.  General   principles.     Actual  and  ostensible   agency. 

§  573.  Agency  by  statutory  estoppel. 

§  574.  Same.     Purpose. 

§  575.  Same.     Statutory  provision. 

§  576.  .  Same.     When  contract  is  void. 

§  577.  Person  in  possession  as  agent  of  owner. 

§  578.  Same.     Person  working  mine. 

§  579.  Architect  as  agent. 

§  580.  Presumption  of  agency  raised. 

§  581.  Undue    extension   to    statutory    agency   of    rules    applicable 

only  to  common-law  agency. 

§  582.  Personal   liability   of  agent. 

§  583.  Agency  to  receive  notice  of  claims  of  subclaimants. 

§  584.  Principal  bound  by  notice  to  agent. 

§  572.  General  principles. ^  Actual  and  ostensible  agency. 
The  general  law  of  agency  applies  to  the  "  owner,"  iude- 

'  See,  generally,  Renton  v.  Conley,  49  Cal.  185,  187;  Gibson  v. 
Wheeler,  110  Cal.  243,  244,  42  Pac.  Rep.  810;  Hines  v.  Miller,  122  Cal. 
517,  55  Pac.  Rep.  401;  Reese  v.  Bald  Mt.  Consol.  G.  M.  Co.,  133  Cal.  285, 
291,  65  Pac.  Rep.  578. 

As  to  authority  of  agent  to  create  meehanlc's  lien,  see  61  Am.  Dec. 
696. 

See  "Constitutional  Aspects,"  §§28  et  seq.,  ante;  "Estoppel,"  §§469 
et  seq.,  ante;  "Pleading,"  §§695  et  seq.,  post;  "Evidence,"  §§779 
et  seq.,  post;  "Parties,"  §§  662  et  seq.,  post. 

HiLsbaud  as  agent  of  ^vife:  See  Santa  Cruz  R.  P.  Co.  v.  Lyons,  117 
Cal.  212,  48  Pac.  Rep.  100'.  59  Am.  St.  Rep.  174.  See  notes  61  Am.  Dec. 
693;  83  Am.  St.  Rep.  518-524;   10  L.  R.  A.  33. 

Married  woman'.*!  property,  -when  subject  to  meciiauic's  lien:  See, 
generally,  note  83  Am.  St.  Rep.  517. 

Oklalionia.  Wife  not  personally  liable,  where  husband  enters  into 
contract  concerning  her  separate  property:  See  Limerick  v.  Ketcham 
(Okl.),  87  Pac.  Rep.   605    (under  Stats.  1893,   §  4527). 

Wife  as  agent  of  tlie  liu.shanii:  See  Fulkerson  v.  Kilgore,  10  Okl. 
655,  64  Pac.  Rep.  5. 

Utah.  Where  the  husband  makes  a  contract  as  agent  of  the  wife, 
or  she  expressly  ratifies  the  contract  as  made,  lien  allowed;  otherwise 
not,  even  thougli  wife  occupies  the  premises  with  her  husband  and 
knows  the  work  is  going  on:  Morrison  v.  Clark,  20  Utah  432,  59  Pac. 
Rep.   235,   77  Am.  St.  Rep.   924    (under  Sess.  Laws  1894). 

Washington.  "  The  liusband  is  empowered  to  contract  for  the 
erection  of  buildings  on  the  community  real  estate,  and  thus  subject 
it  to  mechanics'  liens":  Douthitt  v.  MacCulsky,  11  Wash.  601,  606,  40 


§§  573,  574  mechanics'  liens.  528 

pendently  of  any  statute.^  An  agency  is  either  actual  or 
ostensible.^  An  agency  is  actual  when  the  agent  is  really 
employed  by  the  principal.*  An  agency  is  ostensible  when 
the  principal  intentionally,  or  by  want  of  ordinary  care, 
causes  a  third  person  to  believe  another  to  be  his  agent,  who 
is  not  reallj^  employed  by  him.^ 

§  573.  Agency  by  statutory  estoppel.  An  ostensible  agent 
may  be  said  to  be  the  agent  of  one  against  whom  the  equi- 
table doctrine  of  estoppel  may  be  invoked.  Mechanic's-lien 
statutes  generally,  for  the  purposes  of  the  statute,  create  a 
new  species  of  agency,  which  may  be  considered  an  agency 
by  statutory  estoppel,  or,  under  certain  circumstances,  as  the 
cases  sometimes  express  it,  a  presumption  of  agency  arises; 
by  which  is  meant  that  a  rule  of  evidence  is  established  by 
the  statute.  It  must  be  admitted,  moreover,  that  some  cases 
go  almost  to  the  point  of  making  this  presumption  conclu- 
sive, and  the  adjudications  are  not  in  a  satisfactory  condi- 
tion. 

§  574.  Same.  Purpose.  Section  eleven  hundred  and 
eighty-three,*^  as  suggested  in  the  last  preceding  section,  goes 

Pac.  Rep.  186;  Littell  &  S.  Mfg.  Co.  v.  Miller,  3  Wash.  480,  28  Pac. 
Rep.  1035. 

Husband,    as    agent    of    -wrife,    contracting:    tor    construction    on    the 

separate  property  of  wife:  See  Spears  v.  Lawrence,  10  Wash.  368,  38 
Pac.  Rep.   1049,  45  Am.  St.  Rep.  789. 

\Vliere  it  is  not  sho^vn  that  the  ^vifc  had  any  knovrledge  of  the  con- 
tract made  by  her  husband  relative  to  her  separate  property,  and 
the  only  proof  tending-  to  show  the  husband's  agency  was  the  fact 
that  the  husband  and  wife  had  executed  a  mortgage  upon  certain 
lands,  including  the  tract  in  controversy,  which  recited,  among  other 
things,  that  they  thereby  bound  themselves  to  make  improvements 
on  said  lands,  and  that  the  husband  had  told  the  plaintiffs  they  were 
borrowing  money  for  the  purpose  of  putting  up  a  building,  there  Is 
insufficient  proof  of  the  husband's  agency:  Cattell  v.  Fergusson,  3 
W^ash.    541,    28   Pac.   Rep.    750. 

Husband  not  agent  of  owner:  See  Anderson  v.  Hilker,  38  Wash. 
632,  SO  Pac.  Rep.  848.  But  see  Anderson  v.  Harper,  30  Wash.  378,  70 
Pac.  Rep.   965. 

2  See  "Claim  of  Lien,"  §385,  ante. 

3  Kerr's  Cyc.  Civ.  Code,  §  2298,   and  note. 
*  Kerr's  Cyc.  Civ.  Cqde,   §  2299,   and  note. 

See  also  McClain   v.  Hutton,   131   Cal.  .132,   141,   61   Pac.  Rep.   273,   63 
Id.   182,  622;  Renton  v.  Monnier,   77  Cal.  449,  19  Pac.  Rep.  820. 
=  See  Kerr's   Cyc.   Civ.   Code,   §§  2300,    2317,   and   notes. 
«  Kerr's  Cyc.  Code  Civ.  Proc,  §  1183,  as  amended  Stats.  1903,  p.  84. 


529  AGENCY.  §  574 

beyond  the  case  of  actual  agency,  and  even  beyond  that 
of  "  ostensible  "  agency,  and  superimposes  a  presumption  of 
special  and  peculiar  statutory  agenc^^  for  the  purposes  of 
the  chapter,  which  exists  under  the  circumstances  set  forth 
in  the  statute ;  nameh*,  when  certain  persons  enumerated 
have  "  charge  of  any  mining,  or  work  and  labor  performed 
in  and  about  such  mining  claim  or  claims,  or  real  property 
worked  as  a  mine,  or  the  construction  ...  of  any  building 
or  other  improvement  as  aforesaid,  or  of  such  mining  claim 
or  claims,  either  as  lessee  or  under  a  working  bond  or  con- 
tract thereon,  with  the  privilege  of  purchase,  or  otherwise."  ^ 

'  See  McClain  v.  Hutton,  131  Cal.  132,  141,  61  Pac.  Rep.  273,  63  Id. 
182,  622. 

See  "  E.stoppel,"  §§  469  et  seq.,  ante. 

Colora«lo.      See   Laws   1893,    §  1,   p.   315. 

"Implied  agent":  See  Chicag-o  L.  Co.  v.  Dillon,  13  Colo.  App.  196, 
56  Pac.  Rep.  9S9. 

Laws  1893,  ch.  cxvii,  S§  1,  2,  p.  315,  held  constitutional,  although 
undertaking  to  make  out  of  the  contractor,  who  is  an  adverse  party 
to  the  owner  of  the  property,  an  agent  of  the  owner:  See  Chicago  L. 
Co.  V.  Newcomb,  19  Colo.  App.  265,  74  Pac.  Rep.  786,  789. 

\\'itliout  exi»re.ss  provision,  the  contractor  would  possess  the 
powers  of  an  agent:   Id. 

Haivaii.  The  statute  makes  the  contractor  the  agent  of  the  owner 
against  the  wishes  of  the  latter,  but  to  a  very  limited  extent  only; 
namely,  for  the  purpose  of  purchasing  suitable  materials  to  be  put 
into  the  building,  but  not  for  the  contractor's  own  benefit:  Allen  v. 
Redward,  10  Hawn.  151,  158. 

Montana.  See  Merrigan  v.  English,  9  Mont.  113,  22  Pac.  Rep.  454, 
5  I..   R.   A.    837. 

New  Mexico.     See  Post  v.  Miles,  7  N.  M.  317,  34  Pac.  Rep.   586. 

Oregon.  Contractor  "  special  "  agent  of  owner,  witli  limited 
powers:  Beach  v.  Stamper,  44  Oreg.  4,  74  Pac.  Rep.  208,  102  Am.  St. 
Rep.  597;  Pitch  v.  Howitt.  32  Oreg.  396,  52  Pac.  Rep.  192  (under  Hill's 
Ann.  Laws,  §2699);  Cooper  Mfg.  Co.  v.  Delahunt,  36  Oreg.  402,  51 
Pac.  Rep.  649.  See  Hunter  v.  Cordon,  32  Oreg.  443,  52  Pac.  Rep.  182; 
Osborn  v.  Logus,  28  Oreg.  302,  319,  38  Pac.  Rep.  190,  42  Pac.  Rep.  997. 

Likewise  under  Hill's  Ann.  Code,  §  3676,  relating  to  grading,  etc., 
in  incorporated  cities:  Pilz  v.  Killingsworth,  20  Oreg.  432,  26  Pac.  Rep. 
305. 

Contractor  as  statutory  aKcut  of  owner:  Smith  v.  Wilcox,  4  4  Oreg. 
323.  74  Pac.  Rep.   70S,   75  Id.  710. 

Contractor  and  subcontractor  not  owner's  agent  to  determine  the 
value  of  materials  furnished  or  labor  done:  Quackenbush  v.  Artesian 
L.  Co.,  47  Oreg.  303,  83  Pac.  Rep.  787  (under  Bellinger  and  Cotton's 
Ann.  Codes  and  Stats.,  §  5640).  See  Cooper  M.  Co.  v.  Delahunt,  36 
Oreg.  402,  51  Pac.  Rep.  649,  60  Id.  1;  Watson  v.  Noonday  M.  Co.,  37 
Oreg.  287,  60  Pac.  Rep.  994,  996  (Hill's  Ann.  Laws,  §3669);  Fitch  v. 
Howitt,   32   Oreg.   396,   52  Pac.  Rep.  192. 

A  subcontractor  is  one  wlio  lias  entered  Into  a  contract,  express  or 
Implied,    for    the    performance    of    an    act    with    the    person    who    has 
already    contracted    for    its    performance:    Smith    v.    Wilcox.    44    Oreg. 
323,  74  Pac.   Rep.   708.   75  Id.  710. 
Mech.  Liens  —  34 


§  575  mechanics'  liens.  530 

It  is  created  for  the  purpose,  not  of  fixing  a  personal  liability 
on  the  OAvner,  but  of  binding  his  interest  in  the  property.^ 

§  575.  Same.  Statutory  provision.  Section  eleven  hun- 
dred and  eighty-three  '"*  provides :  "  Mechanics,  .  .  .  shall 
have  a  lien  .  .  .  for  the  value  of  such  labor  done  and  ma- 

jVo  contractual  privity  bet^'ccn  the  oivner  an<l  subcontractor:  Smith 
V.   WUcox,   44   Oreg-.   323,    74  Pac.   Rep.    708,    75   Id.    710. 

Utah.  Materials  furnished  to  ag-ent  of  owner:  See  Mammoth  M. 
Co.  V.  Salt  I.ake  F.  &  M.  Co..  151  U.  S.  447,  450,  bk.  38  L.  ed.  229,  14 
Sup.  Ct.  Rep.  384,  affirming  s.  c.  sub  nom.  Salt  Lake  F.  &  M.  Co.  v. 
Mammotlt  M.  Co.,  6  Utah   351,   23  Pac.  Rep.   760. 

Contract  must  be  made  T%ith  owner  or  authorized  agent;  as,  agent, 
contractor,  or  otherwise:  Eccles  L.  Co.  v.  Martin  (Utah,  Nov.  14,  1906), 
87  Pac.  Rep.  713,  715:  Morrison  v.  Clark.  20  Utah  432,  59  Pac.  Rep.  235. 

"Washington.  Contractor  as  statutory  agent:  Seattle  L.  Co.  v. 
Sweeney  (Wash..  June  19.  1906),  85  Pac.  Rep.  677:  Peterson  v.  Dillon, 
27  Wash.  78,  67  Pac.  Rep.  397,  400  (Ballinger's  Ann.  Codes  and  Stats., 
§5900).     See  Collins  v.  Snoke,  9  Wash.   566,   38  Pac.  Rep.  161. 

Agency  tlius  establi.slied  is  a  purely  statutory  one,  and  will  not  be 
extended  beyond  the  necessities  of  tlie  case:  Whittier  v.  Puget  Sound 
L.  T.  &  B.  Co.,  4  Wash.  666,  30  Pac.  Rep.  1094,  31  Am.  St.  Rep.  944;  but 
in  Spokane  etc.  L.  Co.  v.  McChesney,  1  Wash.  609,  614,  21  Pac.  Rep. 
198,  it  was  said:  "This  word  'agent'  has  an  accepted  legal  and  popu- 
lar meaning,  and  makes  all  contracts,  notices,  and  knowledge  of  the 
main  contractor  that  of  the  owner  himself.  The  owner  is  bound  by 
the  acts  of  his  agents.  It  makes  the  owner  privy  with  both  con- 
tractor and  subcontractor."  Under  1  Mills's  Code,  §  1663,  the  owner's 
material-man  was  not  the  "agent"  of  the  owner,  within  the  meaning 
of  the  law:  Pacific  R.  M.  Co.  v.  Hamilton,  61  Fed.  Rep.  476  (Cir.  Ct.), 
affirmed  in  Pacific  R.  M.  Co.  v.  James  Street  Cons.  Co.,  68  Fed.  Rep. 
966,   16  C.  C.  A.  68,  29  U.  S.  App.   698. 

*  See  Reed  v.  Norton,  90  Cal.  590,  595,  598,  26  Pac.  Rep.  767;  Booth 
V.  Pendola,  88  Cal.  36,  41,  44,  23  Pac.  Rep.  200,  24  Pac.  Rep.  714,  25 
Pac.  Rep.   1101. 

Xew  3Iexico.  But  see  language  of  court  in  Hobbs  v.  Spiegel  berg, 
3  N.   M.   357,   5  Pac.  Rep.  529. 

Oregon.  See  Osborn  v.  Logus,  28  Oreg.  302,  308,  38  Pac.  Rep.  190, 
42  Pac.  Rep.  997.  And  thus  differs  from  the  agency  at  the  g-eneral 
law,  which  may  impose  a  personal  liability  upon  the  principal:  See 
Hines  v.  Miller,   122  Cal.   bl^,   55  Pac.  Rep.  401. 

^Vashington.  See  Whittier  v.  Puget  Sound  L.  Co.,  4  Wasli.  666,  30 
Pac.   Rep.   1094,   31   Am.  St.  Rep.  994. 

"  Kerr's   Cyc.   Code   Civ.   Proc,   §  1183,   as  amended  March    5,    1903. 

Vtah.  Under  Rev.  Stats.,  §  1372.  the  lessee  in  possession  making 
Improvements  under  the  terms  of  the  lease  is  not  the  "agent"  of  the 
owner:  Morrow  v.  Merritt,  16  Utah  412,  52  Pac.  Rep.  667. 

AVashington.  Griffith  v.  Maxwell,  20  Wash.  403,  55  Pac.  Rep.  571, 
573. 

tnder  1  Hill's  Code,  §  1663,  the  contractor,  subcontractor,  or  other 
persons  enumerated,  "  to  be  the  agent  of  the  owner  of  any  building 
or  other  improvement  by  virtue  of  this  statute,  must  be  one  having 
charge,  in  whole  or  in  part,  of  the  construction,  alteration,  or  repair 
thereof":  Pacific  R.   M.   Co.   v.   Hamilton, '61  Fed.   Rep.   476. 

Compare,  as  to  architect,  Cadwell  v.  Brackett,  2  Wash.  321,  26 
Pac.   Rep.   219. 


531  AGENCY.  §§  576,  577 

terials  furnished,  whether  at  the  instance  of  the  owner,  or  of 
an}'  other  person  acting  by  his  authority  or  under  him,  as 
contractor  or  otherwise ;  and  any  person  who  performs  labor 
in  any  mining  claim  or  claims,  or  in  or  upon  any  real  prop- 
erty worked  as  a  mine,  either  in  the  development  thereof  or 
in  working  thereon  by  the  subtractive  process,  has  a  lien  .  .  . 
for  the  work  or  labor  done  or  materials  furnished  by  each 
respectively,  whether  done  or  furnished  at  the  instance  of 
the  owner  of  such  mining  claim  or  claims  or  real  property 
worked  as  a  mine  or  of  the  building,  or  other  improvement, 
or  his  agent ;  and  every  contractor,  subcontractor,  architect, 
builder,  or  other  person  having  charge  of  any  mining,  or 
work  and  labor  performed  in  and  about  such  mining  claim 
or  claims,  or  real  property  worked  as  a  mine,  or  the  con- 
struction, alteration,  addition  to,  or  repair,  either  in  whole 
or  in  part  of  any  building  or  other  improvement  as  afore- 
said, or  of  such  mining  claim  or  claims,  either  as  lessee  or 
under  a  working  bond  or  contract  therein,  with  the  privi- 
lege of  purchase,  or  otherwise,  shall  be  held  to  be  the  agent 
of  the  owner  for  the  purposes  of  this  chapter." 

§  576.  Same.  When  contract  is  void.  When  the  con- 
tract is  void,  the  contractor  is,  as  to  other  claimants,  the 
agent  of  the  owner.^**  A  contract  made  by  the  original  con- 
tractor, as  statutory  agent,  under  a  void  statutory  original 
contract,  will  not  render  the  owner  personally  liable  to  the 
original  contractor's  subclaimants.^^ 

^  577.  Person  in  possession  as  agent  of  owner.  One  who 
is  in  possession  of  certain  premises  by  the  owner's  permis- 
sion, and  makes  repairs  upon  a  house  situated  thereon,  by  the 
letter's  consent,  under  a  verbal  agreement  with  the  owner 
to  purchase  the  premises  and  pay  for  the  repairs,  is  the 
"  agent "  of  the  owner,  so  as  to  charge  the  interest  of  the 

'"  Gihbs  V.  Tally,  133  Cul.   373.  377,   6.5  Pac.  Rep.  970,   60  L.  R.  A.  815. 

I  nder  a  void  contract,  contractor,  nRrent  of  the  owner,  either  actu- 
ally or  statutory:  See  McClain  v.  Hutton,  131  Cal.  132,  139,  142,  61 
Pac.  Rep.   273.   63   Id.   182,   622. 

"  McClain  v.  Hutton,  131  Cal.  132,  144,  61  Pac.  Rep.  273,  63  Id.  182, 
622. 


§  578  mechanics'  liens.  532 

owner  Avith  liens  for  snch  repairs.^-  Thus  where  a  certain 
fixture  was  sold  and  delivered  to  the  person  having  charge 
and  management  of  a  water-works,  to  be  used  at  the  works, 
without  anything  being  said  as  to  his  acting  for  anybody 
else,  he  will  be  held  to  have  acted  for  the  owners  of  the 
property,  and  their  interests  therein  will  be  bound  by  a  lien 
therefor. ^^ 

§  578.  Same.  Person  working  mine.  A  contract  author- 
izing a  person  to  occupy  and  hold  possession  of  a  mine,  and 
make  improvements  on  it,  and  do  certain  work  on  his  own 
account,  does  not  show  that  such  person  was  in  any  manner 
the  agent  of  the  owner,  before  the  amendment  of  1903  to  sec- 
tion eleven  hundred  and  eighty-three.^^  "  The  agent  referred 
to  in  the  section  must  be  the  agent  of  the  owner  of  the 
building,  mining,  or  improvement.  And  w^hen  the  statute 
says  that  certain  persons  are  '  deemed  to  be  the  agent  of  the 

'-  Moore  v.  Jackson,  49  Cal.  109,  111. 
See  "  Estoppel,"  §§  469  et  seq.,  ante. 
As  to  mechanic's  lien  on  landlord's  interest  created  by  tenant,  see 

note  6  L.  R.  A.    (N.  S.)   485. 

In  Eaton  v.  Rocca,  75  Cal.  93,  95,  16  Pac.  Rep.  529,  it  seems  that 
the  person  who  employed  the  claimant's  laborer  on  a  mine  had  done 
so  without  the  knowledge  of  the  owner,  who  had  never  empowered 
the  employer  to  act  as  his  superintendent  or  agent,  or  held  him  out 
as  such.  The  report  tends  to  show  that  the  employer  was  a  mere 
trespasser.  No  reference  was  made  to  §  1183,  Code  Civ.  Proc,  as  to 
the  person  "having  charge"  of  the  mining  being  the  agent  of  the 
owner,  and  it  was  held  that  the  employer  did  not  act  as  the  agent  of 
the  owner;  that  neither  the  owner  nor  his  land  was  bound  by  the  act 
of  such  employer,  and  that  the  plaintiff  had  no  lien.  Where  a  lessee 
in  possession  made  a  contract  with  a  contractor,  it  was  found  that 
the  contractor  was  the  agent  of  both  defendants,  but  it  was  held  that 
there  was  no  evidence  to  justify  this  finding:  See  Jones  v.  Shuey  (Cal., 
April   3,   1895),  40  Pac.  Rep.  17. 

Arizona.  See  Eaman  v.  Bashford,  4  Ariz.  199,  37  Pac.  Rep.  24; 
Gates  v.  Fredericks,  5  Ariz.  343,  52  Pac.  Rep.  1118. 

Colorado.  The  contract  may  be  with  an  authorized  agent  of  the 
owner:  W'illiams  v.  Uncompahgre  Canal  Co.,  13  Colo.  469,  22  Pac.  Rep. 
806    (Gen.  Stats.,  ch.  xv). 

Purchaser  as  implied  agent  of  grantor  of  deed  in  escrow*,  and 
express  agent  of  the  grantee:  Chicago  L.  Co.  v.  Dillon,  13  Colo.  App. 
196,  56  Pac.  Rep.  989. 

>Vashington.  See  Kremer  v.  Walton,  16  Wash.  139,  47  Pac.  Rep. 
238,  s.  c.  11  W'ash.  120,  39  Pac.  Rep.  374. 

"  Goss  V.  Helbing,  77  Cal.  190,  19  Pac.  Rep.  277.  It  is  probable 
that  the  owner  had  knowledge  of  the  management  of  the  works  by 
the  purchaser,  and  is  perhaps  a  case  of  aptual  or  ostensible  agency. 

"  Kerr's   Cjc.   Code   Civ.  Proc,   §  1183. 


533  AGENCY,  §  579 

owner,'  it  means  the  agent  of  the  owner  of  the  building, 
mining,  or  other  improvement."  ^•' 

Before  the  amendment  of  1907,  a  person  not  expressly 
authorized  by  the  owner  of  a  mine  to  act  in  his  behalf  is  not 
the  constructive  agent  of  the  owner,  unless  he  is  a  person 
having  charge  of  "  mining,"  as  previously  provided  by  the 
statute,  that  is,  doing  some  work  upon  the  mine  itself,  for 
the  purpose  of  extracting  ores,  and  is  not  merely  in  posses- 
sion under  a  contract  by  which  he  Avas  empowered  to  make 
improvements  and  prosecute  development-work  thereon.  He 
was  required  to  be  engaged  in  the  actual  work  of  mining, 
and  the  services  contracted  for  by  him  must  have  been  such 
as  aided  in  such  mining,  in  order  to  constitute  the  person  in 
charge  of  the  mining  the  agent  of  the  owner  to  contract 
for  such  services,  and  in  order  to  give  a  lien  therefor  against 
the  mining  claim. ^^ 

§  579.  Architect  as  agent.  When  an  architect  has  no  other 
authority  than  is  specially  conferred  upon  him  by  a  written 

"  Reese  v.  Bald  Mt.  Consol.  G.  M.  Co.,  133  Cal.  285,  287,  65  Pac.  Rep. 
578. 

Alaska.  A  mere  allegation  that  plaintiffs  erected  a  structure  at 
the  Instance  of  one  who  was  in  possession  of  the  land  under  a  con- 
tract of  purchase  with  the  owner  is  an  insufficient  allegation  that  the 
same  was  constructed  at  the  instance  of  the  owner  or  his  agent 
(under  Civ.  Code,  §262):  Russell  v.  Hayner,  2  Alas.  703  (Dig.),  130 
Fed.  Rep.   90,   64  C.   C.  A.  424. 

Arizona.  Lease-holder  not  the  agent  of  the  lessor,  under  Rev. 
Stats.,  §  2280:  Gates  v.  Fredericks,  52  Pac.  Rep.  1118.  See  Bogan  v. 
Roy,  86  Pac.  Rep.  13,  15  (lessee  of  mine);  Walter  C.  Hadley  Co.  v. 
Cummings,  7  Ariz.  258,  64  Pac.  Rep.  443  (mill  and  hoisting-works); 
Grifhn   v.   Hurley,   7  Ariz.  399,   65  Pac.  Rep.   147. 

Colorado.  A  vendor  required  to  make  improvements  on  the  prop- 
erty, agent  of  the  vendor:  See  Antlers  Park  R.  M.  Co.  v.  Cunning- 
ham, 29  Colo.  284,  68  Pac.  Rep.  226;  Shapleigh  v.  Hull,  21  Colo.  419, 
41  Pac.  Rep.  1108;  Colorado  I.  W'.  v.  Taylor,  12  Colo.  App.  451.  55  Pac. 
Rep.  942;  Wilkins  v.  Abell,  26  Colo.  462,  58  Pac.  Rep.  612;  Little 
Valeria  G.  M.  &  M.  Co.  v.  Ingersoll,  14  Colo.  App.  240,  59  Pac.  Rep.  970. 

Wasliin^on.  The  lessee  is  not  the  agent  of  the  owner,  within 
the  statute;  but  otherwise  where  a  lease  contains  provisions,  in  the 
nature  of  a  building  contract,  authorizing  the  lessee  to  proceed  with 
the  construction  of  a  building:  Stetson-Post  M.  Co.  v.  Brown,  21 
Wash.  619,  59  Pac.  Rep.  507,  75  Am.  St.  Rep.  862;  Kremer  v.  Walton, 
11    Wash.   120,   39   Pac.   Rep.   374. 

"  Williams  v.  Hawley,  144  Cal.  97,  103,  77  Pac.  Rep.  762.  See  Reese 
V.  Bald  Mt.  Consol.  G.  M.  Co.,   133  Cal.  285,  287,  65  Pac.  Rep.  578. 

New  Mexico.  Foreman  in  charge  of  mining,  agent  of  the  owner: 
Post  V.  Fleming,  10  N.  M.  476,  62  Pac.  Rep.  1087  (under  Comp.  Laws 
1897,   §  2217). 


§  580  mechanics'  liens.  534 

contract  for  the  construction  of  a  building,  and  such  author- 
ity consists  merelj'  in  seeing  that  the  building  is  properly 
constructed  according  to  the  drawings  and  specifications,  to 
certify  to  that  effect,  to  sign  and  issue  certificates  for  pro- 
gress payments,  and  to  decide  any  dispute  which  may  arise 
respecting  the  true  construction  and  meaning  of  the  draw- 
ings and  specifications,  there  is  no  authority  conferred  upon 
the  architect  to  receive  notice  of  an  assignment  of  the  con- 
tract, such  as  would  create  constructive  notice  to  the  owner 
of  the  building  thereby.^^ 

§  580.  Presumption  of  agency  raised.  The  provision  of 
the  statute  under  discussion  only  raises  a  presumption  of 
agency,  which  may  be  rebutted.^^  Thus  where  the  president 
of  a  corporation  which  owned  the  land  visited  the  premises 
while  certain  repairs  were  going  forward,  and  was  then  in- 
formed thereof,  the  corporation  is  prima  facie  charged  with 
knowledge  of  the  fact  that  the  work  was  being  done.^^ 

A  person  claiming  to  be  the  agent,  and  acting  on  the  land 
as  the  agent,  of  the  owner  may  bind  the  land  and  the  interest 
of  the  owner,  on  the  principle  of  estoppel ;  -°  but  if  the  owner 

"  Renton  v.  Monnier,  77  Cal.  449,  19  Pac.  Rep.  820. 

See   1   Am.   &   Eng.   Ann.   Cas.   950. 

Idiilio.  Architect  as  agent  of  the  owner:  See  Huber  v.  St.  Joseph's 
Hospital.   11   Idaho   631,   83  Pac.  Rep.   768. 

Oregon.  Architect  as  agent  of  owner  to  procure  and  approve  bond: 
See  WoUenberg-  v.  Sykes   (Oreg.),   81  Pac.  Rep.   148.   150. 

^VashiIlgtoll.  The  mere  fact  that  an  architect  was  directed  by  the 
owner  to  go  with  the  contractor  and  get  a  bond  to  be  executed  by 
the  contractor  did  not  authorize  the  architect  to  make  any  change  in 
the  contract:   Sweeney  v.  JEltna.  I.  Co.,  34  W^ash.  126,  74  Pac.  Rep.  1057. 

IS  Donohoe  v.  Trinity  Consol.  Co.,  113  Cal.  119,  123,  45  Pac.  Rep.  259; 
Jurgenson  v.  Diller,  ll4  Cal.  491,  492,  46  Pac.  Rep.  610,  55  Am.  St.  Rep. 
83. 

See  "Evidence,"  §§779  et  seq.,  post. 

Evidence  o£  agency:  See  Linck  v.  Johnson,  134  Cal.  xix,  66  Pac.  Rep. 
674. 

Oregon.  Title  G.  &  T.  Co.  v.  "W^renn,  35  Oreg.  62,  56  Pac.  Rep.  271, 
76  Am.  St.  Rep.  454.     See  Allen  v.  Rowe,  19  Oreg.  188. 

See  §§  469  et  seq.,  ante,  and  Cross  v.  Tscharnig,  27  Oreg.  49. 

Washington.  Agency  a  question  of  fact  for  the  jury:  Novelty  M. 
Co.  V.   Heinzerling,   39  W>sh.    244,   81   Pac.   Rep.    742. 

"  Phelps  V.  Maxwell's  Creek  G.  M.  Co.,  49  Cal.  336,  338.  But  see 
Ayers  v.  Green  Gold  M.  Co..  116  Cal.  333,  336,  48  Pac.  Rep.  221. 

Washington.  See  Novelty  M.  Co.  v.  Heinzerling,  39  Wash.  244,  81 
Pac.    Rep.    742. 

2»  See  "Estoppel,"  §§469  et  seq.,  ante. 

Oregon.  Compare:  Harrisburg  L.  Co.  v.  Washburn,  29  Oreg.  150, 
44  Pac.  Rep.   390. 


535  AGENCY.  §  581 

shows  want  of  knowledge,  and  non-employment  of  the 
alleged  agent,  with  a  showing  that  he  had  exercised  ordi- 
nary care  in  the  premises,  his  interest  is  not  bound  ;-^  and 
knowledge  by  the  claimant  that  the  alleged  agent  had  no 
authority  to  act  for  the  owner  will  prevent  the  lien  from 
coming  into  existence.-^ 

§  581.  Undue  extension  to  statutory  agency  of  rules  ap- 
plicable only  to  common-law  agency.  The  doctrine  of  stat- 
utory agency  seems,  in  a  recent  case,-^  however,  to  have  been 
carried  beyond  the  limits  to  which  it  was  brought  by  the 
former  decisions,  which  practically  only  furnish  a  rule  of 
evidence,  namely,  a  presumption;  for  it  has  been  held  that 
where  a  contractor  (who  deals  at  arm's-length  with  the 
owner  of  the  building,  there  being  no  relation  of  trust  be- 
tween them  in  the  particular  case)  buys  material  and  sues 
for  a  balance  upon  a  quantum  valebat,  the  contractor  could 
not  contract  to  pay  one  price  for  his  articles  purchased  and 

=^1  Donohoe  v.  Trinity  Consol.  Co.,  113  Cal.  119,  123,  45  Pac.  Rep.  259. 
See  Jurgenson  v.  Diller,  114  Cal.  491,  492,  46  Pac.  Rep.  610,  55  Am.  St. 
Rep.    83. 

See    "  Constitutional   Aspects,"    §§  28    et   seq.,    ante. 

Idaho.  A  person  unlawfully  in  possession  is  not  tlie  agent  of  the 
owner:  Idaho  G.  M.  Co.  v.  Winchell,  6  Idaho  729,  59  Pac.  Rep.  533,  96 
Am.  St.   Rep.   290. 

Xew  Mexico.  See  Post  v.  Miles,  7  N.  M.  317,  325,  335,  34  Pac.  Rep. 
586. 

Oregon.  And  so  a  mere  stranger,  who,  by  fraudulent  representa- 
tions that  he  is  the  owner,  induces  a  material-man  to  deliver  material 
to  the  contractor,  who  is  not  a  party  to  the  fraud,  cannot  bind  the 
owner  as  agent  (under  Hill's  Code,  §3669):  Sellwood  L.  Co.  v.  Mon- 
nell,   26  Oreg.  267,  38  Pac.  Rep.   66. 

~  Jurgenson  v.  Diller,  114  Cal.  491,  492.  46  Pac.  Rep.  610,  55  Am.  St. 
Rep.  83;  Ayers  v.  Green  Gold  M.  Co.,  116  Cal.  333,  336,  48  Pac.  Rep.  221. 

Montana.  So  of  a  hiring  by  a  partner,  when  claimant  knew  that 
the  agreement  had  to  be  ratified  by  the  other  partners:  Nolan  v. 
Lovelock,   1  Mont.   224. 

^  Kuhlman  v.  Burns,  117  Cal.  469,  49  Pac.  Rep.  585  (void  statutory 
original  contract).  There  does  not  appear  to  be  any  reason  why  a 
contractor,  who  holds  no  relation  of  trust  to  the  owner,  could  not,  in 
suing  on  the  implied  contract,  take  advantage  of  a  cheap  purchase 
of  materials  by  himself,  although  the  price  paid  may  be  some  evi- 
dence of  the  value.  This  doctrine  leads  logically  to  the  result  that 
no  contractor  should  be  permitted  to  make  a  profit  on  his  contract. 
Of  course,  Where  the  original  contractor  is  in  reality  an  "agent"  of 
the  owner,  as  where  the  contract  is  to  superintend  the  construction 
on  a  percentage  basis,  a  relation  of  trust  exists:  See  Booth  v.  Pen- 
dola,   88  Cal.   36,   41,   45.   23   Pac.  Rep.   200.   24  Id.   714,   25  Id.   1101. 

Sec  also  $§  118  et  seq.,  ante. 


§§  582-584  mechanics'  liens.  536 

then  subject  the  defendant  to  pay  him  a  larger  price  for 
the  same  articles,  since,  as  it  was  said,  the  contractor  was 
the  "  agent  "  of  the  owner,  under  section  eleven  hundred 
and  eighty-three  of  the  Code  of  Civil  Procedure.^* 

§  582.  Personal  liability  of  agent.  An  express  or  actual 
agent  of  the  owner  is  not  personally  liable  to  the  claimants, 
under  the  general  principles  of  the  law  of  agency.-^  But, 
under  the  provision  creating  the  statutory  agency,  the  stat- 
utory agent  may,  under  the  general  rules  of  law,  be  person- 
ally liable  to  his  subclaimants.-® 

§  583.    Agency  to  receive  notice  of  claims  of  subclaimants. 

Besides  the  statutory  agency  to  bind  the  owner's  interest  in 
the  land  by  persons  "  having  charge  "  of  the  work,  discussed 
above,  section  eleven  hundred  and  eighty-five  -^  provides 
another  species  of  agency,  of  a  passive  nature,  to  bind  the 
owner,  by  receiving  notice  of  claims  of  subclaimants.-^ 

§  584.  Principal  bound  by  notice  to  agent.  The  rule  is 
well  settled  that  notice  to  an  agent  of  facts  arising  from  or 
connected  with  the  subject-matter  of  the  agency  is  con- 
structive notice  to  the  principal,  when  the  notice  comes  to 
the  agent  while  he  is  concerned  for  the  principal,  and  in  the 
course  of  the  very  transaction;  but  notice  to  an  agent  of 
facts  not  arising  from  or  connected  with  such  subject-matter 
is  not  notice  to  the  principal,  unless  actually  communicated 
to  him.^^ 

24  Kerr's  Cyc.  Code  Civ.  Proc.,  §  11  S3. 

'-  Eaton  V.  Rocca,  75  Gal.  93,  97,  16  Pac.  Rep.  529;  Mclntyre  v. 
Trautner,    63   Cal.   429,   431. 

Agent  not  personally  liable:  See  Schindler  v.  Green  (Cal.  App.,  Aug. 
14,  1905),  82  Pac.  Rep.  341,  and  see  s.  c.  149  Cal.  752,  82  Pac.  Rep.  631. 

-«  See  "Original  Contractor,"   §§55,  65,  ante. 

=1   Kerr's  Cyc.  Code  Civ.  Proc.,  §  1185. 

2s  See  "Notice,"   §§547   et  seq.,  ante. 

Kerr's  Cyc.  Code  Civ.  Proc,  §  1187,  provides  for  the  occupation  and 
use  of  a  building  by  the  owner's  "  representative  "  and  the  accept- 
ance thereof  by  his   "agent."     See   "Completion,"   §§334   et  seq.,   ante. 

2»  Renton  v.  Monnier,  77  Cal.  449,  19  Pac.  Rep.  820.  See  Kerr's  Cyc. 
Civ.  Code,  §  19,  and  note  pars.  26,  27. 


I 


537  THIRD  PERSONS.  §§  585,  586 


CHAPTER    XXIX. 

THIRD  PERSONS. 

§  585.  Scope  of  discussion. 

§  586.  Purchasers  and  other  lien-holders. 

§  587.  Same.     Defective  claim  of  lien  as  notice  to  bona  fide  third 

parties. 

§  588.  Assignees.     Assignment  of  inchoate   right  to   lien. 

§  589.  Same.     Formalities  of  assignment. 

§  590.  Same.     Unaccepted  order. 

§  591.  Same.     Assignment  of  debt  necessary. 

§  592.  Same.     Separate  assignments  of  debt  and  security. 

§  593.  Same.     Splitting  demands. 

§  594.  Same.     Notice  of  assignment. 

§  595.  Same.     General  rights  of  assignee. 

§  596.  Same.     Conditional   acceptance. 

§  597.  Same.     Defenses  arising  subsequent  to  assignment. 

§  598.  Same.     Assignment  to   surety   on   contractor's   bond. 

§  599.  Same.     Insolvency.     Bankruptcy. 

§  600.  Same.     Premature  payments. 

§  601.  General  creditors.     Claimants  losing  lien. 

§  602.  Same.     Attachment  or  process.     Materials. 

§  603.  Same.     Garnishment. 

§  604.  Mortgagees.     Obligation  to  advance  moneys  for  construction. 

§  585.  Scope  of  discussion.  lu  this  and  the  following- 
chapter  we  shall  briefly  consider  the  rights  and  obligations 
of  those  who  are  not  lien  claimants,  but  who  derive  rights 
or  have  duties  imposed  upon  them  through  lien-holders,  such 
as  assignees  and  sureties,  and  also  the  rights  and  obliga- 
tions of  general  creditors  of  those  who  are  affected  by  the 
mechanic's-lien  statute. 

§  586.  Purchasers  and  other  lien-holders.  The  rights  of 
lien-holders,  otlier  than  claimants,  have  been  considered  to 
some  extent  elsewhere.^  It  has  already  been  shown  that 
persons  dealing  with  the  property  during  the  progress  of  tlie 

'  See  "Priorities,"  §§487  et  seq.,  ante;  and  "Divestment  of  Lien," 
§§  627  et  seq.,  post. 


§§  587,  588  mechanics'  liens.  538 

work  are  charged  with  notice  of  the  claims  of  mechanics,^ 
and  that  purchasers  take  the  property  subject  to  such 
claims.^  Reference  is  made  to  another  part  of  this  work  for 
a  detailed  discussion  of  this  subject. 

§  587.  Same.  Defective  claim  of  lien  as  notice  to  bona 
fide  third  parties.  Section  twelve  hundred  and  three  a, 
which  is  a  new  section  added  to  the  Code  of  Civil  Procedure 
in  1907,  provides  that  the  lien  is  not  invalidated  unless  an 
innocent  third  party  without  notice,  direct  or  constructive, 
has,  since  the  claim  was  filed,  become  the  bona  fide  owner  of 
the  property  liened  upon,  and  the  notice  of  claim  was  so 
deficient  that  it  did  not  put  the  party  upon  further  inquiry 
in  any  manner.* 

§  588.     Assignees.'     Assignment  of  inchoate  right  to  lien. 

It  has  been  shown  that  the  right  to  create  a  lien  on  the  prop-" 

=  Crowell  V.  Gilmore,   13  Cal.   54,  56. 

2  See   §  4  90.    ante. 

*  Kerr's  Cyc.  Code  Civ.  Proc,  §  1203a;  Kerr's  Stats,  and  Aiudts. 
1906-07,  p.   482. 

See  "Mistake  and  Error  in  Claim,"  §§  412  et  seq.,  ante. 

^  As  to  assignability  of  a  niecliantc's  lien,  see  notes  11  L.  R.  A.  740; 
13  L.  R.  A.   704;  49  Am.  St.  Rep.   530. 

See  §  23,  ante. 

Coustruetion  of  assignment  "  suitject  to  conditions  of  original  con- 
tract ":  See  Pacific  R.  M.  Co.  v.  Englisli,  118  Cal.  123,  129,  50  Pac.  Rep. 
383. 

Reassignment  to  claimant  of  assigned  claim:  See  Macomber  v. 
Bigelow,  126  Cal.  9,  13,  58  Pac.  Rep.  312. 

Failure  to  give  notice  of  assignment,  owing  to  confidence  in  as- 
signor: See  Renton  v.  Monnier,  77  Cal.  449,  19  Pac.  Rep.  820. 

Claim,  under  Kerr's  Cyc.  Code  Civ.  Proc,  §  1203,  subsequently 
declared  unconstitutional,  for  damages  against  owner  of  property 
failing  to  take  bond  from  contractor,  within  Kerr's  Cyc.  Code  Civ. 
Proc,  §  1458,  declaring  that  a  right  arising  out  of  an  obligation  is 
the  property  of  the  person  to  whom  it  is  due,  and  maj'  be  transferred 
as  such:  See  Gibbs  v.  Tally  (Cal.,  Dec.  22,  1900),  63  Pac.  Rep.  168, 
reversed  133  Cal.   373,   65  Pac.  Rep.  970. 

See  "  Constitutional  Aspects,"  §  39,  ante. 

Colorado.  Assignee  of  judgment:  Empire  L.  &  C.  Co.  v.  Engley, 
18  Colo.  388,   33  Pac.  Rep.  153. 

Assignment  of  prior  mechanic's  lien  to  .subsequent  mortgagee: 
Fitch  V.  Stallings,   5  Colo.  App.   106,   38  Pac.  Rep.   393. 

Assignee  of  o-»vner's  laborer:  Hanna  v.  Savings  Bank,  3  Colo.  App. 
28,  31  Pac.  Rep.  1020. 

Pleading  assignment  -of  claim:  See  Eagle  G.  M.  Co.  v.  Bryarly,  28 
Colo.  262,  65  Pac.  Rep.  52,  54;  Rialto  M.  &  M.  Co.  v.  Lowell,  23  Colo. 
253,  47  Pac.  Rep.  263. 


539  THIRD    PERSONS.  §  589 

erty,  or  on  the  fund,  is  personal  in  California,  and  hence 
assignees  have  no  right  to  perfect  such  liens,  the  lien  being 
not  yet  in  existence,  although  it  is  a  general  rule  that  the 
assignment  of  a  debt  carries  with  it  the  lieu  by  which  it  is 
secured."^  But  the  sale  of  the  interest  in  a  contract,  by  a 
partner  to  his  copartners,  is  not  within  the  rule  that  the 
right  to  create  a  lien  cannot  be  assigned  to  a  stranger  to 
the  transaction." 

After  the  lien  is  perfected,  it  may  be  assigned,  and  the 
assignee  may  foreclose  the  lien.'* 

§  589.  Same.  Formalities  of  assignment.  The  assign- 
ment of  a  mechanic's  lieu,  such  lien  being  a  charge  upon  the 

Nevada.  Lien  may  be  assigned:  Skvrme  v.  Occidental  M.  Co.,  & 
Nev.  219. 

Oregon.  See  Title  G.  &  T.  Co.  v.  Wrenn,  35  Oreg.  62,  56  Pac.  Rep. 
271,    76   Am.   St.  Rep.    454. 

Owner,  as  assignee  of  the  claim,  "svill  not  be  limited  to  tlie  amount 
paid  for  tlie  lien,  if  less  than  the  face  value,  but  may  enforce  it  to  the 
extent  to  which  his  assignor  could  do  so:  Id. 

1-tali.  Assignee  of  lien  may  foreclose:  Culmer  v.  Clift,  14  Utah  2S6, 
47  Pac.  Rep.   85    (1896). 

\Va.sliington.  Supplemental  pleadings  (assignee  pendente  lite): 
See  Powell  v.  Nolan,  27  Wash.  318,  67  Pac.  Rep.  712,  721. 

"  Mills  V.  La  Verne  L.  Co.,  97  Cal.  254,  256,  32  Pac.  Rep.  169,  33  Am. 
St.  Rep.  168;  McCrea  v.  Johnson,  104  Cal.  224,  225,  37  Pac.  Rep.  902; 
Rauer  v.  Fay,  110  Cal.  361,  42  Pac.  Rep.  902;  Rauer  v.  Welsh  (Cal.,  Dec. 
10,  1895),  42  Pac.  Rep.  904.  But  see  Duncan  v.  Hawn,  104  Cal.  10,  14, 
37  Pac.  Rep.  626  (under  threshing-macliine  act,  which  does  not  require 
any  act  of  claimant  to  perfect  lien);  Simons  v.  Webster,  108  Cal.  16, 
19,  40  Pac.  Rep.  1056    (filing  claim  by  surviving  partners). 

See  "General  Nature  of  Lien,"  §9,  ante;  "Notice,"  §§547  et  seq., 
ante. 

L'nder  the  act  of  April  2(5,  18«2,  §  5,  the  assignee  of  the  laborer,  etc., 
could  give  notice  to  tlie  owner.  It  was  claimed  in  Beatty  v.  Mills,  113 
Cal.  312,  313,  45  Pac.  Rep.  468,  tliat  an  assignment  of  a  claim  for 
street- work,  under  Kerr's  Cyc.  Code  Civ.  Proc,  §  1191,  under  a  private 
contract,  when  the  assignee  filed  the  claim,  rendered  the  lien  invalid, 
but   the  point  was  not  decided   by  the   court. 

Montana.     Mason  v.  Germaine,  1  Mont.  263,  272   (1865). 

Oregon.     Brown  v.  Harper,  4  Oreg.  89   (decided  in  1870). 

'  Simons  v.  Webster,  108  Cal.  16,  19,  40  Pac.  Rep.   1056. 

Assignment  of  debt  from  iiurtuersliiii  to  one  partner:  See  Gray  V. 
Wells,   118  Cal.   11,   17,  50  Pac.  Rep.   23. 

See  "Nature  of  Lien,"  §9,  ante;  "Claimants,"  §§42  et  seq,,  ante. 

«  Duncan  v.  Hawn,  104  Cal.  10,  14,  37  Pac.  Rep.  626.  See  Marchant 
V.  Hayes,   120  Cal.  137,  138,  52  Pac.  Rep.  154. 

See  "General  Nature  of  Lien,"  §9,  ante;  and  Ritter  v.  Stevenson, 
7  Cal.  388,  389. 

Montana.  Davis  v.  Bilsland,  85  U.  S.  (18  Wall.)  659,  bk.  21  L.  ed. 
90!). 

Oregon.     Brown  v.   Harper,   4   Oreg.   89. 


§  590  mechanics'  liens.  540 

land,  can  only  be  made  in  writing.^  A  mere  signing  of  the 
written  assignment  by  the  assignor,  without  delivery  thereof 
to  the  assignee,  is  ineffectual  to  vest  title  to  the  sum  assigned 
in  the  assignee. ^° 

Copartnership  claim.  Where  a  claim  of  lien  is  filed  by  a 
copartnership,  and  the  account  and  lien  are  assigned  in 
writing,  made  by  one  of  the  partners,  in  the  name  of  the 
partnership,  to  himself  individually,  such  assignment  is 
sufficient,  so  far  as  the  owner  is  concerned,  especially 
where  the  other  members  of  the  firm  raise  no  objection  to 
the  assignment. ^^ 

§  590.  Same,  Unaccepted  order.  Where  it  is  plainly 
apparent  from  the  evidence  that  the  plaintiff  was  the 
assignee  and  owner  of  the  contractor's  claim,  an  unaccepted 
order,  previously  given  by  the  contractor  in  favor  of  the 
plaintiff  for  such  claim,  does  not  amount  to  an  assignment  of 
the  same,  nor  in  any  way  affect  the  subsequent  assignment 
of  the  whole  claim  to  the  plaintiff  after  the  claim  of  lien  was 
filed,  and  where  the  plaintiff  testifies  that  there  was  no 
assignment  to  him,  but  a  mere  order,  his  statement  ought  to 
control,  as  the  plaintiff  is  the  only  one  who  could  be  injured 
by  holding  that  the  order  was  not  an  assignment. ^- 

»  Ritter  v.  Stevenson,  7  Cal.  3SS,  389.  See  Kerr's  Cyc.  Civ.  Code, 
§  1091,  and  note;  and  Kerr's  Cys.  Code  Civ.  Proc.,  §§  1971,  1973,  and 
notes. 

Colorado.  See  Small  v.  Foley,  8  Colo.  App.  446,  47  Pac.  Rep.  64 
(1889). 

"  Ritter  v.   Stevenson,   7   Cal.   388,    389. 

Assignment  of  lien.  Necessity  for  writing:  See  Curnow  v.  Happy 
Valley  Blue  Gravel  &  H.  Co.,  68  Cal.  262,  264.  9  Pac.  Rep.  149;  Patent 
Brick  Co.  v.  Moore,  75  Cal.  205,  211,   16  Pac.  Rep.  890. 

Oregon.  Where  the  parties  to  an  assignment  testify  that  it  was 
Intended  to  assign  the  lien  so  as  to  foreclose  several  liens  in  the  same 
suit,  the  writing  purporting  to  assign  "our  claim"  against  a  person 
designated,  and  being  made  after  the  filing  of  the  claim  of  lien,  and 
prior  to  the  commencement  of  the  action,  the  assignment  is  good,  as 
far  as  the  owner  is  concerned:  Nottingham  v.  McKendrick,  38  Oreg. 
495,  63  Pac.  Rep.  822,  57  Id.  195. 

"  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  109  Cal.  566,  570,  42  Pac.  Rep. 
154. 

"  Wyman  v.  Hooker,  2  Cal.  App.  36,  41,  83  Pac.  Rep.  79. 

Assignment.  Effective  vrhen.  Assignment  made  by  contractor  of 
amount  due  under  contract  for  public  building  not  effective  until 
approval  of  estimates  by  superintendent,  as  required  by  contract,  nor 
until  final  completion  and  acceptance  of  the  work:  See  Newport 
W.  &  L.  Co.  V.  Drew,  125  Cal.  585,  58  Pac.  Rep.  187. 


541  THIRD   PERSONS.  §§  591-593 

§  591.  Same.  Assignment  of  debt  necessary.  The  lien 
will  not  pass,  except  by  a  transfer  of  the  account ;  and  where 
the  account  was  assigned  with  a  verbal  understanding  that 
in  case  the  assignee  collects  it,  he  will  credit  his  claim  with 
a  portion  thereof  and  return  the  balance  to  the  assignor,  and 
if  nothing  is  received  no  sum  is  to  be  credited,  it  was  held 
that  the  assignment  was  void,  and  that  the  assignee  could 
not  sue  thereon  in  his  own  name.^^ 

§  592.  Same.  Separate  assignments  of  debt  and  security. 
Where  a  note  is  assigned  to  one  person,  and  the  money  due 
from  the  owner  to  the  contractor  is  assigned  to  another 
person  as  security  therefor,  the  latter  holds  the  security  as 
pledge-holder  and  trustee  for  the  assignee  of  the  note,  and 
the  former  can  and  should  enforce  the  collateral  security  for 
the  benefit  of  his  principal  or  assignee  of  the  note,  and  the 
latter  is,  by  equitable  assignment,  owner  of  the  security.^* 

Title  of  assignee  of  security.  Right  to  enforce.  The  per- 
son holding  the  security  under  such  circumstances  either 
takes  the  legal  title  of  the  security  as  pledge-holder  or 
trustee  for  the  assignee  of  the  note,  or  takes  no  title  what- 
ever. The  assignment  of  moneys  due  cannot  be  used  by  the 
holder  for  his  own  benefit,  but  for  that  of  the  owner  of  the 
note,  who  can,  as  equitable  assignee  of  the  security,  enforce 
the  same,  whether  its  holder  takes  title  thereof  or  not.^^ 

§  593.  Same.  Splitting  demands.  It  is  not  permissible 
for  the  building  contractor  to  split  his  demand  against  the 

"  Ritter  v.  Stevenson,  7  Cal.  388,  389. 

Colorado.  Assignment  of  a  claim  carries  witli  it  both  the  debt  and 
the  right  to  lien:  Perkins  v.  Boyd,  16  Colo.  App.  266.  65  Pac.  Rep.  350, 
s.  c.  sup.  ct.  86  Pac.  Rep.  1045  (under  Mills's  Ann.  Stats.,  §  2872e,  2d  ed., 
§2894);  and  see  Sprague  I.  Co.  v.  Mouat  L.  Co.,  14  Colo.  App.'lOT  60 
Pac.  Rep.  179,  182  (1883,  1889);  Eagle  G.  M.  Co.  v.  Bryarly  ^g  Colo 
262.   65   Pac.   Rep.   52,   54. 

AVyoiniag.  A.ssignment  of  debt  carries  -nitli  it  every  right  and 
security  available  to  the  assignor  as  incident  tliereto;  and  as  against 
one  who  is  given  a  lien  upon  property  to  secure  a  debt,  due  or  to 
become  due,  it  is  not  necessary,  in  a  suit  to  foreclose  the  lien,  to 
allege  ownership  of  the  property  in  the  debtor:  Ramsey  v  .Johnson 
8  Wyo.  476,  58  Pac.  Rep.  755,  80  Am.  St.  Rep.  948  (not  a  mechanic's- 
lien  case). 

"  Perry  v.  Parrott,    135   Cal.   238,   243,  67   Pac.  Rep.   144. 

«  Perry  v.  Parrott,   135  Cal.   238,   243,  67  Pac.  Rep.   144. 


§§  594,  595  mechanics'  liens.  542 

emplo3^er,  and,  by  assignment  of  a  portion  thereof,  impose 
upon  the  latter,  without  his  consent,  the  legal  obligation  of 
paying  the  assignee."  But  the  rule  is  otherwise  if  the  owner 
promises  to  pay  the  contractor's  orders.^^ 

§  594.  Same.  Notice  of  assignment.  When  the  owner 
pays  to  the  contractor  moneys  due  under  the  original  con- 
tract, before  the  former  has  notice  of  an  earlier  assignment 
of  the  contract,  the  owner  is  not  liable  to  the  assignee  for 
the  amount  paid.^^ 

Notice  to  one  who  does  not  understand  the  English  lan- 
guage. AYhen  a  contract  is  assigned,  and  one  who  cannot 
read  nor  write  English  is  given  notice  thereof  by  simply 
being  shown  the  notice  written  in  English,  without  its  being 
read  to  him  or  left  with  him,  the  notice  given,  in  order  to  be 
effectual,  should  be  sufficiently  precise  and  complete  enough 
to  put  the  defendant  fully  on  his  guard  as  to  the  fact  of  such 
assignment,  and  he  should  understand  it.^'* 

Questions  of  fact.  Whether,  under  the  circumstances,  the 
notice  was  given  or  not,  and  if  given,  whether  the  defendant 
understood  it,  and  it  was  sufficient  to  put  him  on  his  guard, 
or  in  the  language  of  the  code,  to  put  a  prudent  man  on 
inquiry,  are  questions  of  fact.^® 

§  595.     Same.      General    rights    of    assignee.      Generally 

speaking,  the  assignee  has  no  higher  rights  than  his  assignor 
had.-°  Thus,  under  a  statutory  original  contract,  where  the 
original  contractor  makes  an  assignment  of  moneys  due  from 
the  owner  before  the  completion  of  the  work,  it  vests  in  the 
assignee,  prior  to  the  expiration  of  thirty-five  days  from  the 
date  of  the  completion  of  the  contract,  no  rights  in  any  wise 

"  Clancy  v.  Plover,  107  Cal.  272,  275,  40  Pac.  Rep.  394;  Pacific 
R.  M.  Co.  V.  English,  118  Cal.  123,  131,  50  Pac.  Rep.  383. 

See    §  533,   ante. 

"  Adams  v.  Burbank,  103  Cal.  646,  649,  37  Pac.  Rep.  640;  Clancy  v. 
Plover,  107  Cal.  272,  275,  40  Pac.  Rep.  394. 

See   §  593,   ante. 

"  Renton  v.  Monnier,   77  Cal.   449,   19  Pac.  Rep.   820. 

»  Renton   v.   Monnier,   77    Cal.   449,   19   Pac.   Rep.   820. 

2°  Pacific  R.  M.  Co.  v.  English,  118  Cnl.  123,  128,  50  Pac.  Rep.  383. 
See  Johnson  v.  La  Grave,  102  Cal.  324,  326. 

See  "  Notice,"  §§  547  et  seq.,  ante. 


543  THIRD   PERSONS.  §  ^^^ 

different   from   or   superior   to   tliose   of   the  original   con- 
tractor.-^ 

Release  prior  to  assignment.  The  assignee  of  an  original 
contract,  who  performs  work  under  it,  takes  it  subject  to  the 
equities  of  third  parties,  and  a  writing,  executed  by  the 
original  contractor,  releasing  the  owner  from  all  claims 
under  the  contract,  is  admissible  in  evidence,  although  the 
assignee  was  unaware  of  such  release  when  he  took  the 
assignment. ^^ 

Latent  equities.  It  has  been  held  that  the  assignee  of  a 
thing  in  action,  who  purchases  for  value,  in  good  faith,  takes 
it  not  subject  to  the  latent  equities  of  third  persons  of  which 
he  had  no  notice,-^  but  the  assignment  is  subject  to  equities 
in  favor  of  the  debtor. 

Cutting  off  rights  of  subclaimants.  It  has  likewise  been 
held  that  an  assignment  of  the  contract  price,  or  the  balance 
thereof,  with  notice  of  such  assignment  to  the  owner  after  the 
balance  was  due  and  payable  under  the  terms  of  the  original 
contract,  cuts  off  all  rights  of  lien  claimants  in  the  fund  so 
assigned,  and  any  notice  afterwards  given  by  such  claimant 
is  futile,  provided  the  assignee  took  such  assignment  for 
value,  and  without  notice  of  the  unpaid  demand  of  the 
claimant.-*  In  the  case  of  statutory  original  contracts,  how- 
ever, this  rule  is  subject  to  the  limitations  imposed  upon  the 
final  payment  of  twenty-five  per  cent,  already  considered  in 
some  detail.-' 

-'  First  Nat.  Bank  v.  Ferris  Irr.  Dist.,  107  Cal.  55,  6?.,  40  Pac.  Rep.  45. 
See  Pohlman  v.  Wilcox,   146  Cal.  440,  80  Pac.  Rep.  625. 

See  '■  Notice,"  §§  547  et  seq.,  ante. 

'■'-  Rauer  v.  Fay,  110  Cal.  361,  42  Pac.  Rep.  902;  Rauer  v.  Welsh  (Cal., 
Dec.    10,    1895),   42   Pac.   Rep.   904. 

^VasIlington.  Waiver  of  right  to  lien  by  contractor  prior  to  as- 
signment thereof  prevents  assignee  from  enforcing  lien:  Kent  L.  Co. 
V.  Ward,  37  Wash.  60,  79  Pac.  Rep.  485. 

=>»  First  Nat.  Bank  v.  Ferris  Irr.  Dist.,  107  Cal.  55,  62,  64,  40  Pac. 
Rep.  45.     See  Wright  v.  Levy,  12  Cal.  257. 

See  Kerr's  Cye.  Code  Civ.  Proc.,  SS  368,  440,  and  notes;  Kerr's 
Cye.  Civ.  Code,  §  1459,  and  note. 

See  §§  547  et  seq.,  ante,  and  S  561.  ante. 

=*  First  Nat.  Bank  v.  Ferris  Irr.  Dist.,  107  Cal.  55,  62.  64,  40  Pac. 
Rep.    45. 

See  S§  547  et  seq.,  ante.  See  also  Kerr's  Cye.  Civ.  Code,  §  1459,  and 
note. 

"  See  S§  274  et  seq.,  and  S§  541,  563,  ante. 


§§  596,  597  mechanics'  liens.  544 

§  596.  Same.  Conditional  acceptance.  Where  a  subcon- 
tractor assigns  all  his  interest  in  the  last  payment  to  be  made 
to  him  by  the  original  contractors  under  his  subcontract  for 
certain  work  on  a  structure,  and  such  contractors  promise  to 
pay  a  certain  sum  on  his  orders  when  it  should  become  due 
to  him,  and  to  hold  it  out  of  the  last  payment  due  to  such 
subcontractor,  the  assignee  cannot  recover  the  amount 
assigned  from  the  contractors,  if  the  subcontractor  does 
not  perform  his  contract,  and  abandons  it,  as  the  promise  is 
not  absolute,  but  conditional  upon  the  subcontractor's  per- 
formance of  his  contract.-^  And  when  the  contractor,  upon 
failure  of  the  subcontractor  to  carry  out  such  contract,  com- 
pletes the  same  at  more  than  the  subcontract  price,  such 
agreement  for  conditional  payments  cannot  have  the  effect 
of  rendering  the  conditional  promise  absolute,  nor  in  any 
way  affect  the  assignee  of  the  subcontractor  in  the  last  pay- 
ment.-^ 

§  597.     Same.    Defenses  arising  subsequent  to  assignment. 

"Where  trustees  enter  into  a  contract  to  build  a  schoolhouse, 
and  issue  an  order  to  pay  instalments  payable  to  the  con- 
tractor, and  the  architect  makes  an  estimate,  upon  whicli  the 
order  was  made,  and  the  auditor  was  required  to  draw  his 
warrant  therefor  upon  the  requisition  of  the  county  superin- 
tendent, and  the  order  was  assigned  by  the  contractor  in  sat- 
isfaction of  a  prior  debt  in  part,  and  as  to  the  remainder  for 
cash  before  notices  of  certain  claims  were  served,  equities  or 
defenses  not  existing  when  the  order  was  assigned  and  pre- 
sented for  a  warrant  for  payment  do  not  affect  the  assignee, 
nor  do  any  equities  subsequently  arising  against  the  con- 
tractor in  favor  of  the  school  district. 

Thus  where  the  school  district  receives  notice  of  sub- 
claimants'  demands  after  the  assignment  and  presentation 
of  such  order,  no  liability  is  incurred  by  the  district,  nor  is 
its  liability  increased  under  the  contract ;  nor  are  the  rights 
of  the  assignee  affected  thereby;  and  such  assignee  may 
demand    payment,    whenever    there    are    funds    applicable 

2«  Pohlman  v.  Wilcox,   146  Cal.   440,   442,   80  Pac.   Rep.   625. 
«  Pohlman  v.  Wilcox,   146  Cal.   440,   442,   80  Pac.   Rep.   625. 


545  THIRD  PERSONS.  §§598,   599 

thereto,  where  the  contractor  subsequently  commits  a  breach 
of  the  contract,  even  if  increased  expense  is  thereby  incurred 
by  the  school  district  to  complete  the  contract.-* 

§  598.     Same.     Assignment  to  surety  on  contractor's  bond. 

The  subject  of  the  rights  of  sureties  on  the  original  con- 
tractor's bond  will  be  considered  in  the  following  chapter, 
and  their  right  to  claim  a  lien,  it  will  be  observed,  has  been 
questioned.  According  to  the  general  doctrine  relative  to 
sureties  in  California,  it  is  held  that  while  an  assignment  of  a 
claim  of  lien  to  a  surety  on  a  contractor's  bond  that  no  lien 
should  be  filed  does  not  estop  the  assignee  from  suing  on  the 
elaim,^^  yet  he  is  under  a  legal  obligation  not  to  enforce  a 
lien,  which  may  be  urged  as  a  set-off  or  counterclaim. 

§  599.  Same.  Insolvency.  Bankruptcy.  Where  the  origi- 
nal contractor  becomes  insolvent,  the  mere  presentation  of  a 
note  made  by  him,  and  assigned  by  the  payee  to  another 
person,  the  payee  having  also  assigned  the  moneys  due  under 
a  building  contract,  as  security  to  the  payee,  and  the  payee 
having  assigned  such  moneys  to  a  further  party,  the  mere 
presentation  of  the  note  is  an  unsecured  claim  against  the 
estate  of  the  insolvent,  and  the  rejection  of  it,  as  having  been 
secured  by  the  assignment  of  the  moneys  due  on  the  building 
contract,  without  further  effort  to  enforce  the  note  against 
the  estate  of  the  insolvent  contractor,  cannot  preclude  the 
enforcement,  by  the  holder  of  the  note,  of  the  security  of  the 
contractor's  demand  against  the  owner  of  the  building.-'^" 

=■''  Lons  Beach   School  Dist.  v.  i^utg-c,  129  Cal.  409,   62  Pac.  Rep.  36. 

Assignment  of  publio  contract,  with  consent  of  surety  and  nninici- 
pality,  not  valid  without  consent  of  parties  entitled  to  sue  upon  bond: 
See  French  v.  Powell,   135  Cal.  636,  642,   68  Pac.  Rep.  92. 

='»  Stimson  M.  Co.  v.  Riley  (Cal.,  Dec.  20,  189.5),  42  Pac.  Rep.  1072. 

See  "  Sureties,"  §§  605  et  seq.,  post. 

Hawnii.  Assig-nment  to  material-man,  by  contractor,  of  all  moneys 
payable  under  the  contract,  accepted  by  the  owner,  "subject  to  all 
the  conditions  of  the  contract,"  does  not  estop  the  material-man  from 
enforcing  a  lien;  the  contract  not  being  assigned,  but  only  moneys 
payable  under  it.  and  the  action  being  for  the  enforcement  of  a  lien 
under  the  statute,  and  not  for  moneys  payable  under  the  terms  of  the 
contract:  Allen  v.  Redward,   10  Hawn.  151,   157. 

80  Perry  v.  Parrott,   135  Cal.   238,   244,   67  Pac.  Rep.   144. 

Assignee  of  note  of   contractor   filins  claim   ivitli   assignee   in  insol- 
vency: See  Perry  v.  Parrott,  135  Cal.  238,  67  Pac.  Rep.  144. 
Mech.  Liens  —  35 


§§  600.  601  mechanics'  liens.  546 

§  600.  Same.  Premature  payments.  Premature  payments 
amount  to  nothing,  under  certain  circumstances,  as  against 
subclaimants,  but,  under  other  circumstances,  or  against 
other  persons,  such  as  assignees,  they  are  payments  in  every 
sense  of  the  word,^^  and  the  general  principles  of  law  relat- 
ing to  assignments  apply  in  such  cases. 

§  601.  General  creditors.  Claimants  losing  lien.  This 
section  and  those  following  relate  to  the  persons  who  have 
no  lien  upon  the  property  or  upon  the  fund.  Where  lien 
claimants  are  not  entitled  to  enforce  a  lien  upon  the  building, 
by  not  filing  their  claims  of  lien  in  time,  or  otherwise,  they 
stand  upon  the  same  footing  as  general  creditors,^^  and  it  is 
immaterial  to  them,  and  likewise  to  their  assignees,  whether 
any  portion  of  the  moneys  due  under  the  original  contract 
was  unpaid  at  the  time  the  contractor  abandons  the  contract, 
nor  is  it  any  concern  of  theirs  whether  a  proper  disposition 
of  the  unpaid  portion  of  the  contract  price  was  made  by  the 
owner.^^  They  are  not  concerned  with  the  correctness  or 
incorrectness  of  the  findings  of  the  court  as  to  the  liens  of 
other  plaintiffs,  either  in  the  lower  court,  or  upon  appeal 
from  a  personal  judgment  in  their  favor  against  the  con- 
tractor.^* 

A  contractor's  trustee  in  bankruptcy,  and  the  contractor's  general 
assignee  for  the  benefit  of  his  creditors,  so  far  as  mechanics'  liens  are 
concerned,  are  alike:  In  re  Grissler,  136  Fed.  Rep.  754,  69  C.  C.  A.  406. 

As  to  the  liens  mentioned  in  the  banlsruptcy  act,  giving  higher 
rights  to  the  trustee  than  to  the  bankrupt,  mechanics'  liens  perfected 
by  proper  filing  of  the  claim  therefor,  even  if  within  four  months  of 
the  commencement  of  bankruptcy  proceedings,  are  not  included:  In  re 
Grissler,  136  Fed.  Rep.  754,  69  C.  C.  A.  406  (act  July  1,  1898,  ch.  dxli, 
§67;  30  Stats,  at  L.  564;  U.  S.  Comp.  Stats.  1901,  p.  3449;  Fed.  Stats. 
Ann.,  p.  688). 

Construction  given  by  state  courts  as  to  preferential  statutory 
claims,  under  statute  for  assignment  for  the  benefit  of  creditors:  See 
In  re  Grissler,  136  Fed.  Rep.  754,  69  C.  C.  A.  406.  and  In  re  Roeber,  121 
Fed.  Rep.  449,  57  C.  C.  A.  565,  9  Am.  Bank.  Rep.  303. 

Bankruptcy.  Buildings  in  course  of  erection  by  bankrupt.  Lien 
claimants  considered,  in  so  far  as  they  affect  arnounts  due  from 
owners  to  bankrupt:  See  In  re  Hobbs  &  Co.  (D.  C,  W.  Va.),  145  Fed. 
Rep.  211. 

«  Ganahl  v.  "^'eir,  130  Cal.   237,   239,   62  Pac.   Rep.   512. 

32  Johnson  v.  La  Grave,  102  Cal.  324,  326,  36  Pac.  Rep.  651;  Pacific 
Mut.  L.  Ins.  Co.  V.  Fisher,  106  Cal.  224,  234,   39  Pac.  Rep.   758. 

33  Johnson  v.  La  Grave,  102  Cal.  324,  326,  36  Pac.  Rep.  651. 

"■*  Kennedy  &  Shaw  L.  Co.  v.  Priet,  113  Cal.  291,  293,  45  Pac.  Rep. 
336. 

See  "Appeal,"  §  982,  post. 


547  THIRD    PERSONS.  §  601 

Balance  of  fund  after  satisfaction  of  liens.  "While  they 
may  recover  a  personal  jiulgineut  against  the  contractor  to 
whom  they  furnished  the  materials, '^^  yet  they  cannot  recover 
a  judgment  that  the  amount  remaining  due  to  the  contractor 
from  the  owner,  after  all  lien  claims  are  satisfied,  shall  be 
distributed  between  them.^" 

A  judgment  against  the  original  contractor,  in  favor  of  a 
claimant  who  had  filed  no  claim  of  lien,  providing  that  such 
claimant  is  entitled  to  have  the  debt  satisfied  out  of  any 
"  residue  "  that  may  appear  in  the  hands  of  the  owner,  and 
from  the  product  of  the  sale  of  the  property,  after  all  lien 
claims  have  been  satisfied,  is  erroneous,  in  so  far  as  it  directs 
such  payment ;  and  if  the  word  "  residue  "  means  surplus 
moneys  due  from  the  owner  to  the  contractor  after  payment 
of  all  liens,  this,  also,  is  objectionable.'^ 

Judgment  against  owner.  General  creditors  are  not  en- 
titled to  a  judgment  for  the  unpaid  portion  of  the  purchase 
price  against  the  owner ;  ^*  nor,  in  an  action  for  the  fore- 
closure of  mechanics'  liens,  have  they  any  recourse  against 
the  owner's  property;  nor,  in  the  absence  of  privity,  any 
personal  judgment  against  him.^** 

Such  persons  are  not  deemed  included  in  an  offer  of  the 
owner  to  pay  the  amount  due  the  contractor  to  the  persons 
claiming  to  be  lien-holders  in  proportion  to  their  respective 
claims  whenever  the  respective  amount  due  to  each  lien- 
holder  is  determined.*'^ 

3=  Kennedy  &  Shaw  L.  Co.  v.  Priet,  113  Cal.  291,  293,  45  Pac.  Rep. 
336;  Kennedy  &  Shaw  L.  Co.  v.  Dusenbery,  116  Cal.  124,  126,  47  Pac. 
Rep.   1008. 

•■"  Kennedy  &  Shaw  L.  Co.  v.  Priet,  113  Cal.  291,  293,  45  Pac.  Rep.  336, 
337. 

^'  Hampton  v.  Christensen,  148  Cal.  729,  740,  84  Pac.  Rep.  200. 

3s  Kennedy  &  Shaw  L.  Co.  v.  Dusenbery,  116  Cal.  124,  126,  47  Pac. 
Rep.    1008. 

=»  Kennedy  &  Shaw  L.  Co.  v.  Priet,  115  Cal.  98,  99,  46  Pac.  Rep.  903. 
And  see  Kennedy  &  Shaw  L.  Co.  v.  Dusenbery,  116  Cal.  124,  126,  47  Pac. 
Rep.    1008. 

*"  Kennedy  &  Shaw  L.  Co.  v.  Priet,  115  Cal.  98,  99,  46  Pac.  Rep.  903. 
See  Kennedy  &  Shaw  L.  Co.  v.  Dusenbery,  116  Cal.  124,  126,  47  Pac. 
Rep.   1008. 

Utah.  A  mechanic'.s  lien  which  has  attached  is  not  affected  by 
Sess.  I^aws  1892,  ch.  xxx,  giving  certain  laborers  a  preferred  claim 
upon  attachment,  etc.:  Salt  Lake  L.  Co.  v.  Ibex  M.  &  S.  Co.,  15  Utah 
440,  49  Pac.  Rep.  768,  62  Am.  St.  Rep.  944. 


§§  602,  603  mechanics'  liens.  548 

§  602,  Same.  Attachment  or  process.  Materials.  Sec- 
tion eleven  hundred  and  ninety-six*^  provides:  "  Whenever 
materials  shall  have  been  furnished  for  use  in  the  construc- 
tion, alteration,  or  repair  of  any  building  or  other  improve- 
ment, such  materials  shall  not  be  subject  to  attachment, 
execution,  or  other  legal  process,  to  enforce  any  debt  due 
by  the  purchaser  of  such  materials,  except  a  debt  due  for  the 
purchase-money  thereof,  so  long  as  in  good  faith  the  same 
are  about  to  be  applied  to  the  construction,  alteration,  or 
repair  of  such  building,  mining  claim,  or  other  improve- 
ment." 

§  603.  Same.  Garnishment.  It  has  been  seen  that  a  gen- 
eral creditor  of  the  contractor  who  garnishes  money  due  the 
contractor  in  the  hands  of  the  owner  does  not  gain  priority 
over  the  claimant,  who,  after  such  garnishment,  serves  notice 
on  the  owner  of  his  claim  for  labor  and  materials,  which 
relates  back  to  a  time  prior  to  the  garnishment.*- 

Where  the  subcontractor's  material-man  garnishes  moneys 
due  from  the  contractor  to  the  subcontractor,  and  the  con- 
tractor pays  to  the  sheriff  the  amount  due  by  him  to  the  sub- 
contractor, the  material-man  can  make  no  further  demand 
upon  the  contractor.*^ 

Garnishment  subsequent  to  lien.  Where  the  garnishment 
of  the  general  creditor  is  subsequent  to  the  lien  of  claimant, 
and  the  owner  appears  in  answer  to  the  notice  of  garnish- 
ment and  states  that  the  claimant  has  filed  a  lien  which 
has  priority  over  the  garnishment,  the  court  should  either 
discharge  the  owner  from  liability  under  the  garnishment, 
or  postpone  decision  until  the  claim  of  claimant  is  enforced, 

"  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1196.  See  Germania  B.  &  L.  Assoc. 
V.  Wag-ner,   61  Cal.   349,   353. 

See  "Provisional  Remedies,"  §§645  et  seq.,  post. 

AVashington.  See  Potvin  v.  Denny  H.  Co.,  37  Wash.  323,  79  Pac. 
Rep.  940. 

^-  See  "Priorities,"  §§486  et  seq.,  ante;  Board  of  Education  v. 
Blake  (Cal.,  Dec.  3,  1894),  38  Pac.  Rep.  536.  This  case  differs  from 
Kennedy  &  Shaw  L.  Co.  v.  Priet,  115  Cal.  98,  99,  46  Pac.  Rep.  903,  113 
Cal.  291,  45  Pac.  Rep.  336,  and  Kennedy  &  Shaw  L.  Co.  v.  Dusenbery, 
116  Cal.  124,  126,  47  Pac.  Rep.  1008,  in  that  there  was  no  garnishment 
in  the  latter  cases. 

«  Kruse  v.  Wilson,  3  Cal.  App.  91,  84  Pac.  Rep.  442. 


549  THIRD    PERSONS.  §  604 

and  then  any  remainder  in  the  hands  of  the  owner  will  be 
justly  subject  to  the  claim  of  the  garnishing  creditor.** 

§  604.  Mortgagees.  Obligation  to  advance  moneys  for  con- 
struction. The  priority  of  a  mortgage  for  future  advances, 
executed  by  the  owner  for  the  purpose  of  securing  money  to 
erect  a  structure,  has  already  been  discussed.*^  As  between 
the  mortgagee  and  the  mortgager,  however,  there  is  a  marked 
distinction,  recognized  by  the  eases,  between  a  payment  of 
future  advances  which  are  optional  with  the  mortgagee,  and 
those  which  are  obligatory  for  a  definite  sum  agreed  upon, 
for  a  sufficient  consideration.*"  Where  a  deed  of  trust  or 
mortgage  and  a  note  of  the  owner  are  given  to  a  mortgagee, 
they  are  sufficient  consideration  for  a  loan  agreed  upon,  and 
the  mortgagee  is  under  an  enforceable  obligation  to  furnish 
the  money  as  agreed.*^ 

"  Tuttle  V.  Montford,  7  Cal.  358,  360  (1855).  In  Board  of  Education 
V.  Blake  (Cal.),  38  Pac.  Rep.  536,  the  court  ordered  the  balance  of  the 
money  after  satisfying  the  Hens  to  be  paid  over  to  the  garnishing 
creditor,  who  had  been  interpleaded. 

See  "Priorities,"   §§486   et  seq.,   ante. 

*^  See  "  Priorities,"  §§  486  et  seq.,  ante. 

"  liien  secured  by  mortgage,  deeds  of  trust,  or  otherwise,  for  ad- 
vances made  or  to  be  made  for  the  construction  of  a  building  or  otlier 
improvement  on  land,  is  ordinarily  superior  to  a  mechanic's  lien  sub- 
sequently attaching,  although  some  of  the  money  may  have  been 
advanced  after  the  mechanic's  lien  attached":  Valley  L.  Co.  v.  Wright, 
2  Cal.  App.  288,  293,  84  Pac.  Rep.  58.  See  Piatt  v.  Griffith,  27  N.  J.  Eq! 
207;  Mutual  L.  Ins.  Co.  v.  Walling,  51  N.  J.  Eq.  99,  26  Atl.  Rep.  453. 

«  Valley  L.  Co.  v.  Wright,   2  Cal.  App.  288,  291,   84  Pac.  Rep.   58. 

This  distinction  is  stated  in  Savings  &  L.  Soc.  v.  Burnett,  106  Cal. 
514,  532,  533,  39  Pac.  Rep.  922,  wherein  the  court  seems  to  regard 
Tapia  v.  Demartini,  77  Cal.  383.  19  Pac.  Rep.  641,  11  Am.  St.  Rep.  2SS,  as 
stating  the  rule  as  to  optional  advances,  as  also  does  Hall  v.  Glass, 
123  Cal.  500,  56  Pac.  Rep.  336,  69  Am.  St.  Rep.  77. 

Money  loan  a.sNociation  lias  agreed  to  furnisli,  and  for  whicli  a  note 
and  mortgage  has  been  given,  in  no  proper  sense  can  be  said  to  l)e 
future  advances,  as  advances  are  regarded  In  the  cases:  Valley  L.  Co. 
V.  Wright,   supra. 

«  Valley  L.  Co.  v.  Wright,  2  Cal.  App.  288,  291,  84  Pac.  Rep.  58. 

See  §§  497  et  seq.,  a7ite. 

AVasliington.  Home  S.  &  L.  Assoc,  v.  Burton,  20  Wash.  688,  56  Pac. 
Rep.  940,  cited  as  autliority  for  ruling  in  Valley  L.  Co.  v.  Wright,  supra. 

^Vlle^e  niortgaRce  receives  conveyance  of  mortgaged  premises 
under  an  agreement  that  the  lien  shall  remain  intact,  there  is  no 
merger:  and  hence  general  laborers'  liens  covering  all  the  property 
of  the  company,  acquired  after  the  execution  of  such  mortgage,  did 
not  take  precedence  of  the  mortgage  lien,  as  the  law  is  well  settled 
tliat  there  is  no  merger  of  the  mortgage  when  the  mortgager  conveys 
to  the  mortgagee,  as  against  subsequent  encumbrancers,  where  it 
would  be  inequital)le,  or  where  the  intention  of  the  parties  was  other- 
wise: Fitch  V.  Applegate,  24  Wash.  25,  64  Pac.  Rep.  147. 


605  mechanics'  liens.  550 


CHAPTER   XXX. 

THIRD    PERSONS     (CONTINUED).     SURETIES. 

§  605.-  Scope  of  chapter. 

§  606.  Statutory  requirement  of  contractor's  bond. 

§  607.  Same.     Application  of  provision. 

§  608.  Statutory  bond.     Formalities. 

§  609.  Same.     Statutory  bond  void. 

§  610.  Same.     Contract  void.     Bond  valid. 

§  611.  Same.     Liability  on  statutory  bond. 

§  612.  Same.     Statutory  bond,  when  enforceable  as  a  common-law 

obligation. 

§  613.  Common-law  bonds.     Formalities. 

§  614.  General  rule  of  surety's  liability. 

§  615.  Original  contract  as  basis  of  liability. 

§  616.  Auditing  accounts,  as  provided  in  contract. 

§  617.  Construction  of  bond. 

§  618.  Surety's  rights.     Notice. 

§  619.  Surety  as  lien  claimant. 

§  620.  Surety  under  legal  obligation  not  to  foreclose  lien. 

§  621.  Obligee  of  bond  destroying  security  of  surety. 

§  622.  Premature  payments.     Generally. 

§  623.  Same.     Intermediate  instalments. 

§  624.  Same.     Final  instalment. 

§  62.5.  Liability  of  sureties.     Damages. 

§  626.  Bond  of  contractor  on  public  work. 

§  605.  Scope  of  chapter.^  The  general  subject  of  surety- 
ship  will   not   be   considered  herein,   but   the   title   will   be 

1  See  "Bond,"  §§  281  et  seq.,  ante;  "Appeal,"  §§971  et  seq..  post; 
"Cumulative   Remedies."   §638,    post. 

Surety  linishing  building;  after  abandonment:  See  Green  v.  Cliffoid, 
94  Gal.  49,  29  Pac.  Rep.   331. 

Liability  of  .sureties  on  oontractor'.s  bond  to  laborers*  and  material- 
men not  entitled  to  a  lien,  when  bond  conditioned  against  liens  or 
claims:  See  note  9  L.  R.  A.   (N.  S.)   889. 

Arizona.  See,  generally,  Prescott  Nat.  Bank  v.  Head  (Ariz.,  May 
25,   1907),  90  Pac.  Rep.  328,  330. 

Colorado.  Sureties  on  bond  for  re'ease  of  attachment  of  moneys 
due  contractor;  consideration:  See  Schradsky  v.  Dunklee,  9  Colo.  App. 
394,  48  Pac.  Rep.  666.  • 

Oregon.  No  issue  raised  by  answer -in  action  on  contractor's  bond: 
See  Enterprise  H.  Co.  v.  Book  (Oreg-.,  May  1,  1906),  85  Pac.  Rep.  333, 
334. 


41 


551  THIRD   PERSONS SURETIES.  §  606 

treated  only  in  so  far  as  it  relates  to  the  bonds  of  contractors 
for  the  faithful  performance  of  their  contracts,  and  to  stipu- 
lations against  the  filing  of  claims  or  liens  against  the  em- 
ployer or  his  property. 

§  606.  Statutory  requirement  of  contractor's  bond.  It  has 
already  been  seen  that  the  provisions  of  section  twelve  hun- 
dred and  three,-  requiring  the  statutory  original  contract  to 
be  accompanied  by  a  bond  of  the  original  contractor,  to 
inure  to  the  benefit  of  any  and  all  persons  performing  labor 
for  or  furnishing  materials  to  the  contractor,  and  making  the 

stipulating  as  to  action  for  breacli  of  contract.  The  parties  to  a 
contract  may  stipulate  tliat  an  action  for  its  breach  shaU  be  brought 
within  a  reasonable  specified  period,  but,  where  the  amount  of  the 
liability  for  liens  could  not  be  determined  until  they  were  foreclosed, 
which  was  after  the  period  of  time  for  commencing  suit  on  the  bond, 
such  limitation  was,  under  the  circumstances,  unreasonable  and  in- 
operative; and  where  such  liens  are  filed  by  reason  of  the  failure  of 
the  surety  in  carrying-  out  the  principal's  contract  to  pay  claimants, 
such  limitation  is  waived:  Ausplund  v.  ^tna  I.  Co.,  47  Oreg.  10,  81 
Pac.   Rep.   577    (pleading  special   limitation). 

AVashington.  The  sureties  have  a  right  to  complete  the  building 
after  abandonment  by  the  contractor:  Brodek  v.  Farnum,  11  Wash. 
565,   572,   40  Pac.   Rep.   189. 

As  to  counterclaim  of  surety,  and  liability  of  sureties  for  damages 
for  delay,  and  defective  material  and  workmanship,  see  Brodek  v. 
Farnum,    supra. 

Corporation  as  surety:  See  Wheeler  v.  Everett  L.  Co.,  14  Wash.  630, 
45  Pac.   Rep.    316. 

Owner  may  waive  breacli  of  contract,  caused  by  the  mere  filing  of 
subclaimants'  liens,  on  the  theory  that  the  contractor's  bond  is  not 
broken  thereby  until  a  lien  is  charged  against  his  property  by  judg- 
ment, so  that  an  action  brought  on  the  bond  within  the  time  limited 
therein  from  the  date  of  such  judgment  is  in  time:  Denny  v.  Spurr, 
38  Wash.  347,  80  Pac.  Rep.  541;  Washington  S.  I.  Co.  v.  Flynn,  38  Wash. 
701,  SO  Pac.  Rep.  544.  See  Friend  v.  Ralston,  35  W^ash.  422,  77  Pac. 
Rep.  794  (compensated  surety);  Ovington  v.  /Etna  I.  Co.,  36  W'ash.  473, 
78  Pac.  Rep.  1021:  Beebe  v.  Redward,  35  Wash.  615,  77  Pac.  Rep.  1052 
(surety  not  prejudiced). 

Distinction  between  voluntary  guarantor  and  compensated  surety: 
See  Cowles  v.  United  States  F.  &  G.  Co.,  32  Wash.  120,  72  Pac.  Rep. 
1032,  98  Am.  St.  Rep.  838. 

Contractor  having  partner  unknown  to  owner  and  surety  does  not 
release  surety:  Crowley  v.  United  States  F.  &  G.  Co.,  29  W'ash.  26S,  69 
Pac.   Rep.   784. 

=  Kerr's  Cyc.  Code  Civ.  Proc,  §  1203.  This  section,  in  1885,  required 
no  bond  to  be  given,  but  if  a  bond  was  given,  it  was  required  to  be 
filed,  otherwise  it  was  void,  etc.  This  section  continued  in  force  until 
1887,  when  it  was  repealed,  and  no  provision  was  made  with  reference 
to  bonds  until  the  enactment  of  tlie  section  in  the  form  suggested  in 
tne  text.  Bond  on  contract  for  street-work,  under  Street  Improve- 
ment Act  of  March  18,  1885,  §  6Vi  (new),  Stats.  1899,  p.  23,  Ueuuing's 
General  L.aws,  p.  1310. 


§§  607-609  mechanics'  liens.  552 

owner  and  contractor  liable  in  damages  to  lien-holders  for  a ' 
failure  so  to  do,  has  been  declared  unconstitutional.^    Under 
the  circumstances,  no  extended  discussion  of  the  statutory 
bond  Avill  be  made. 

§  607.  Same.  Application  of  provision.  The  bond  re- 
quired by  the  provisions  of  section  twelve  hundred  and 
three,*  which,  as  heretofore  stated,  was  declared  unconstitu- 
tional, was  a  statutory  bond,  and  was  applicable  only  to 
statutory  original  contracts,  and  not  to  non-statutorj'  origi- 
nal contracts ;  and  the  general  principles  applicable  to  statu- 
tory bonds  are  pertinent  in  this  connection.^ 

§  608.  Statutory  bond.  Formalities.  Where,  however,  the 
statutory  bond  is  never  filed,  although  signed  by  the  sureties 
and  left  in  the  possession  of  a  third  party,  no  recovery  can 
be  had  on  the  bond  against  the  sureties ;  the  individuals  com- 
posing the  class  of  the  obligees  not  being  known  at  the  time 
of  the  execution  of  the  contract,  and  it  being  impossible  to 
deliver  the  bond  to  them  personally,  or  to  any  agent  for 
them,  and  a  filing  for  record  being  such  delivery,  as  in  the 
case  of  an  official  bond.® 

§  609.  Same.  Statutory  bond  void.  The  statutory  bond 
of  a  contractor,  given  under  the  provisions  of  section  twelve 
hundred  and  three  of  the  Code  of  Civil  Procedure,  being 
held  unconstitutional,  it  is  immaterial  whether  the  failure  of 
the  subclaimant  to  file  a  claim  of  lien  does  or  does  not  relieve 
the  sureties,  as  they  were  not  obligated  under  it.^ 

^  See  §  39,  and  §§  2S1  et  seq.,  ante. 

*   Kerr'.s  Cyo.  Code  Civ.  Proc   §  1183. 

^  Penalty  of  "  failure  to  comply  Avitli  the  provi.sions  of  this  sec- 
tion "  did  not  render  void  any  bond  that  may  be  filed,  but  gave  rise 
to  an  action  for  damages:  See  "Cumulative  Remedies."  §§638  et  seq., 
post.  Bond  valid  as  a  common-law  bond:  See  Central  L.  &  M.  Co.  v. 
Center,  107  Cal.  193,  196,  40  Pac.  Rep.  334;  and  §612,  post,  and  §§281 
et  seq.,  ante. 

«  Mang-rum  v.  Truesdale.  128  Cal.  145,  146,  60  Pac.  Rep.  775. 

Approved:  Carpenter  v.  Furrey,  68  Cal.  665,  669,  61  Pac.  Rep.  369. 

Distinguished:  Gibbs  v.  Tally,  133  Cal.  373,  378,  65  Pac.  Rep.  970,  63 
Id.  168,   60  L.  R.  A.  815. 

'  San  Francisco  L.  Co.  v.  Bibb,  139  C^l.  325,  73  Pac.  Rep.  864. 


553  THIRD  PERSONS  —  SURETIES.  §  610 

§  610.  Same.  Contract  void.  Bond  valid.  The  owner's 
failure  to  record  a  statutory  original  contract  does  not  in- 
crease the  obligation  of  the  sureties  for  the  principal  obli- 
gors named  in  the  bond,  whereby  the  sureties  might  be  dis- 
charged, but  a  stipulation  may  be  inserted  in  the  bond  that 
the  original  contract  should  be  filed,  as  a  condition  precedent 
to  their  liability  as  sureties;*  in  which  case  the  rule  would 
be  otherwise.  Hence  where  the  statutory  original  contract  is 
void,  a  bond  given  by  a  contractor  to  the  owner,  guarantee- 
ing performance  of  all  the  conditions  of  the  contract,  and 
that  the  building  should  be  delivered  free  from  all  liens  that 
might  arise  from  or  be  filed  against  the  building  on  account 
of  material  or  labor  furnished  by  the  contractor,  and  used 
in  or  about  the  structure,  is  valid,  and  binding  upon  the 
sureties.''  And  this  is  the  rule  where  the  bond  is  given  after 
the  execution  of  an  unrecorded  or  void  statutory  original 
contract,  and  refers  to  the  contract  as  the  inducement  or  con- 
sideration for  its  execution ;  ^°  for  a  bond  to  secure  the  owner 
against  the  payment  of  liens  is  so  far  an  independent  under- 
taking that  the  right  to  enforce  it  does  not  depend  upon  the 
subsequent  or  continued  validity  of  the  building  contract; 
and  the  act  of  the  contractors  in  giving  the  bond  as  such  in- 
dependent security,  and  thereby  inducing  the  owner  of  the 
building  to  make  full  payment  of  the  contract  price  to  them, 
estops  them  from  disputing  the  truth  of  the  recital  of  the 
bond  as  to  the  contract,  and  from  denying  their  liability 
upon  it  for  liens  which  they  failed  to  discharge,  and  which 
the  owner  was  compelled  to  pay." 

«  Klesslg  V.  AHspaugh,  99  Cal.  452,  455,  34  Pac.  Rep.  106,  overriiUne 
Schallert-Ganahl  L.  Co.  v.  Neal,  90  Cal.  213,  27  Pac.  Rep.  192,  and 
Kiesslg  V.  AHspaugh,   91  Cal.  234,   27  Pac.  Rep.  662,  13  L.  R.  A.  418. 

»  Blyth  V.  Robinson,  104  Cal.  239,  241,  37  Pac.  Rep.  904  (before 
amendment  of  §  1203  in  1893):  Summerton  v.  Hansen,  117  Cal.  252,  253, 
49  Pac.  Rep.  135;  Kiessig  v.  AHspaugh.  91  Cal.  234,  237,  27  Pac.  Rep. 
662,  13  L.  R.  A.  418,  s.  c.  99  Cal.  452,  453,  34  Pac.  Rep.  106;  McMenomy 
V.  White,  115  Cal.  339,  344,  47  Pac.  Rep.  109,  overriilinK  Scliallert- 
Ganahl  L.  Co.  v.  Neal,  90  Cal.  213,  215,  sub  nom.  Stovell  v.  Neal,  27 
Pac.  Rep.  192. 

"  Klessig  V.  AHspaugh,  91  Cal.  234,  238,  27  Pac.  Rep.  662,  13 
L.  R.  A.  418  (under  Code  Civ.  Proc,  S  1203,  as  it  stood  at  the  time  of 
the  contract,  the  bond  was  required  to  be  filed  with  the  contract: 
otherwise  it  was  void;  but  in  this  case  the  bond  was  given  after  the 
contract  was  made).  See  Union  S.  M.  Works  v.  Dodge,  129  Cal.  390, 
394,   62  Pac.  Rep.   41. 

"  Kiessig  v.  AHspaugh,  91  Cal.  234,  237,  27  Pac.  Rep.  662,  13  L.  R.  A. 
418;  Union  S.  M.  Works  v.  Dodge,  129  Cal.  390,  394,  62  Pac.  Rep.  41. 


§§  611-613  mechanics'  liens.  554 

§  611.  Same.  Liability  on  statutory  bond.  Where  the 
condition  of  a  bond  is  that  the  contractors  "  shall  duly  pay  " 
the  value  of  materials  to  persons  furnishing  the  same,  and 
that  it  should  be  void  if  so  paid,  the  obligation  is  accessory 
and  collateral,  and  can  be  enforced  against  the  sureties  only 
to  the  extent  that  the  same  obligation  can  be  enforced 
against  the  contractor. ^^ 

§  612.  Same.  Statutory  bond,  when  enforceable  as  a 
common-law  obligation.  A  bond  may  be  enforceable  as  a 
common-law  bond,  where  it  makes  no  reference  to  section 
twelve  hundred  and  three  of  the  Code  of  Civil  Procedure, 
requiring  the  contractor  to  file  a  bond,  which  was  held  un- 
constitutional, and  therefore  void,  the  bond  deriving  its 
force  from  its  own  provisions,  and  not  from  any  statute,  nor 
from  the  contract,  which  was  void  for  failure  to  comply 
with  the  statute. ^^ 

§  613.  Common-law  bonds.  Formalities.  It  is  not  neces- 
sary for  the  contractor  to  sign  the  bond.^*    A  joint  and  sev- 

"  Towle  V.  Sweeney,  2  Cal.  App.  29,  83  Pac.  Rep.  74  (apparently  a 
statutory  bond,  the  requirement  for  which  has  been  held  unconstitu- 
tional: See  §39,  ante).  See  Paige  v.  Carroll,  61  Cal.  211;  Sonoma 
County  V.  Hall,  132  Cal.  589,  62  Pac.  Rep.  257,  312,  65  Id.  12,  459;  also 
Farmers'  &  M.  Bank  v.  Klngsley,   2  Doug.    (Mich.)    378,   403. 

Washington.  A  surety  of  a  building  contractor  held  not  bound  by 
a  final  settlement  made  without  notice  to  it  by  the  owner,  contractor, 
and  architect:  Exposition  Amusement  Co.  v.  Empire  State  Surety  Co. 
(Wash.),  96  Pac.  Rep.   158. 

In  an  action  by  the  owner  against  the  surety  of  the  building  con- 
tractor on  its  agreement  to  hold  the  owner  free  from  claims  for 
materialJ,  the  owner  held  entitled  to  show  the  amount  of  such 
claims,  though  claimant,  made  a  party,  did  not  appear:  Exposition 
Amusement  Co.  v.  Empire  State  Surety  Co.    (Wash.),  96  Pac.  Rep.  158. 

"  People's  L,.  Co.  v.  Gillard,  136  Cal.   55,   62,   68  Pac.  Rep.   576. 

See  §§  39,   281  et  seq.,  ante,  and  authorities  cited. 

See  also  Union  S.  M.  W'orks  v.  Dodge.  129  Cal.  390.  62  Pac.  Rep.  41; 
Summerton  v.  Hanson,  117  Cal.  252,  49  Pac.  Rep.  135;  Kiessig  v.  Alls- 
paurh.   99  Cal.  452,  34  Pac.  Rep.   106. 

AVsishington.  Bond  running  to  city,  as  obligee,  instead  of  state, 
as  reciuired  by  statute,  good  as  a  common-law  bond:  See  Pacific  B.  Co. 
V.  United  States  F.  &  G.  Co.,   33  W^ash.  47,  73  Pac.  Rep.  772. 

»  Stimson  M.  Co.  v.  Riley  (Cal.,  Dec.  20,  1895),  42  Pac.  Rep.  1072; 
Kurtz  V.  Forquer,  94  Cal.  91,  94,  29  Pac.  Rep.  413,  distingutshing  Sac- 
ramento V.  Dunlap,  14  Cal.  421,  and  People  v.  Hartley,  21  Cal.  585,  82 
Am.  Dec.  758.  See  Weir  v.  Mead,  101  Cal.  125,  129,  35  Pac.  Rep.  567, 
40  Am.   St.  Rep.   4  6. 

Montana.  Cockrill  v.  Davie,  14  Mont.  131,  35  Pac.  Rep.  958  (he 
having  bound  himself  by  the  original  contract). 


555  THIRD   PERSONS  —  SURETIES.  §614 

eral  bond  is  not  void  merely  owing  to  the  fact  that  all 
obligors  mentioned  in  the  bond  do  not  sign  the  same,^^  and 
the  sureties,  signing  the  bond  and  delivering  the  same  to  the 
obligee  without  the  signature  of  the  principal,  are  liable 
thereunder.^*'  But  it  is  otherwise  if  the  bond  is  joint, ^"  or  if 
several  persons  are  named  in  the  body  of  the  instrument  as 
parties  thereto,  and  it  appears  on  the  face  of  the  instrument, 
or  by  proof,  that  the  person  sought  to  be  charged  signed 
upon  the  consideration  that  the  other  persons  named  would 
also  sign.^® 

§  614.  General  rule  of  surety's  liability.  A  surety  has  the 
right  to  stand  upon  the  terms  of  his  contract,  and  any  altera- 
tion in  the  contract  price,  whereby  his  obligations  are  in- 
creased, made  by  the  parties  thereto,  without  his  consent, 

"  Stimson  M.  Co.  v.  Riley  (Cal.,  Dec.  20,  1895),  42  Pac.  Rep.  1072. 

Oregon.  Sureties  signing  contract  as  principals:  Thompson  v.  Coff- 
man,   15  Oreg.  631,   16  Pac.  Rep.   713. 

"  Kurtz  V.  Forquer,  94  Cal.  91,  93,  29  Pac.  Rep.  413.  See  Weir  v. 
Mead,  101  Cal.  125,  35  Pac.  Rep.  567,  40  Am.  St.  Rep.  46. 

Arizona.  Obligee  of  bond  sued  without  joining  principal:  See  Pres- 
cott  N.  Bank  v.  Head  (Ariz.,  May  25,   1907),  90  Pac.  Rep.  328. 

Montana.     Cockrill  v.  Davie,   14  Mont.   131,   35  Pac.  Rep.   958. 

VVashing^ton.  As  to  consideration  of  bond,  although  contractor  was 
In  possession  and  had  commenced  work  before  its  execution,  see  De 
Mattos  V.  Jordan,   15  Wash.   378,  46  Pac.  Rep.  402. 

"  Kurtz  V.  Forquer,  94  Cal.  91,  29  Pac.  Rep.  413.  See  Weir  v.  Mead, 
101  Cal.   125,  35  Pac.  Rep.  567,  40  Am.  St.  Rep.  46   (probate  bond). 

1*  Cavanaugh  v.  Casselman,  88  Cal.  543,  26  Pac.  Rep.  515;  Kurtz  v. 
Forquer.  94  Cal.  91,  94,  29  Pac.  Rep.  413. 

Colorado.  Purchaser  of  property,  executing  bond  after  delivery  of 
material,  where  no  lien  was  created  on  property:  See  Burleigh  B.  Co. 
V.  Merchant  B.  &  B.  Co.,  13  Colo.  App.  455,  59  Pac.  Rep.  83. 

Blontana.     See  Cockrill  v.  Davie,  14  Mont.  131,  35  Pac.  Rep.  958. 

Oregon.  Surety  bound,  on  the  principle  of  estoppel,  where  he  signed 
a  bond  and  delivered  it  to  the  principal  on  the  understanding  that  an- 
other surety  should  be  procured,  tlie  bond  being  regular  on  its  face, 
and  delivered  to  the  obligee  in  tlie  absence  of  any  showing  of  notice 
to  the  obligee  as  to  the  condition:  Wollenberg  v.  Sykes  (Oreg.,  Marcli 
19,  1907),  89  Pac.  Rep.   148. 

AVaMhington.  Where  the  surety  delivers  a  bond  to  the  contractor 
for  the  purpose  of  closing  a  building  contract  with  tlie  owner,  the 
contractor  is  tliereby  constituted  the  surety's  agent,  and  tlie  surety 
is  bound,  in  the  absence  of  an.vthing  on  the  face  of  tlie  bond  tending 
to  put  the  owner  on  inquiry:  Gritman  v.  United  States  F.  &  G.  Co. 
(W^ash.,  Dec.  20,   1905),  83  Pac.  Rep.  6. 

As  to  consideration  of  l>ond,  although  contractor  was  in  possession 
and  had  commenced  work  before  its  execution,  see  De  Mattos  v.  Jor- 
dan, 15  Wash.  378,  46  Pac.  Rep.  402. 

Date  of  bond  antecedent  to  date  of  oootract:  See  Spokane  &  I.  L. 
Co.  V.  Loy,  21  Wash.  501,  58  Pac.  Rep.  672. 


§  614  mechanics'  liens.  556 

will  discharge  him  from  liability.^®  An  alteration  of  the 
plans,  under  a  statutory  original  contract  calling  for  a  build- 
ing to  cost  sixteen  thousand  three  hundred  dollars,  whereby 
the  cost  was  increased  three  hundred  and  fifteen  dollars, 
released  the  sureties  on  the  contractor's  bond  given  to  secure 
the  performance  of  such  contract  by  the  contractor,  as, 
under  the  general  rule  laid  down  in  section  two  thousand 
eight  hundred  and  nineteen  of  the  Civil  Code,^°  such  altera- 
tion is  material.-^ 

The  expression  found  in  the  opinions  in  some  cases,  that 
a  surety  is  discharged  by  any  "  material  "  alteration  of  the 
contract,  has  no  reference  to  such  an  alteration  as  will  merely 
vary  the  form  of  the  contract  without  changing  its  sub- 
stance, but  it  does  include  such  an  alteration  as  will  increase 
the  obligation  for  which  the  indemnity  was  given.  An  in- 
crease of  upward  of  three  hundred  dollars  is  a  material 
alteration. ^- 

"  Alcatraz  M.  H.  Assoc,  v.  United  States  F.  &  G.  Co.,  3  Cal.  App.  338, 
85  Pac.  Rep.  156,  157;  Tally  v.  Ganahl  (Cal.  App.,  June  19.  1907),  90 
Pac.  Rep.  1049;  Cadenasso  v.  Antonelle,  127  Cal.  382,  59  Pac.  Rep.  765; 
Boas  V.  Maloney,  138  Cal.  105,  70  Pac.  Rep.  1004.     See: 

Arkan-sas.      O'Neal  v.  Kelley,   65  Ark.   550,   47  S.  W.  Rep.   409. 

Georgia.      Bethune  v.  Dozier,   10  Ga.  235. 

Indiana.      Judah  v.  Zimmerman,  22  Ind.  388. 

Mi.<«»iouri.  Beers  v.  Wolf,  116  Mo.  179,  22  S.  W.  Rep.  620;  Eldridge 
V.  Fuhr,  59  Mo.  App.  44. 

Oregon.  Corporation  surety  has  same  right  as  private  surety  to 
stand  upon  its  strict  rights:  Ausplund  v.  JEtnn  I.  Co.,  47  Oreg.  10,  81 
Pac.  Rep.  577. 

Federal.      Miller  v.  Stewart,  22  U.  S.   (9  Wheat.)   680,  bk.  6  L.  ed.  190. 

fSuretles  are  entitled  to  stand  upon  tlie  strict  terms  of  tlieir  con- 
tract: Boas  V.  Maloney,  138  Cal.  105,  107,  70  Pac.  Rep.  1004;  Cadenasso 
V.  Antonelle,  127  Cal.  382,  59  Pac.  Rep.  765;  Tally  v.  Parsons,  131  Cal. 
516,  518,  63  Pac.  Rep.  833. 

=™  Kerr's  Cyc.   Civ.  Code,   §  2819,  and  see   note  thereto. 

*i  Alcatraz  M.  H.  Assoc,  v.  United  States  F.  &  G.  Co.,  3  Cal.  App.  338, 
85  Pac.  Rep.   156   (contract  price,  $16,300;  increased  costs,  $315). 

See  §  615,  post. 

Colorado.  Any  change  in  the  contract  for  the  performance  of 
Which  a  surety  is  bound,  without  his  consent,  relieves  him  from  lia- 
bility, and  the  burden  rests  upon  the  one  seeking  to  charge  the  surety 
to  prove  the  latter's  assent  to  such  change:  United  States  v.  Mclntyre 
(Colo.),  Ill  Fed.  Rep.  590  (Cir.  Ct.). 

"  Alcatraz  M.  H.  Assoc,  v.  United  States  F.  &  G.  Co.,  3  Cal.  App.  338, 
85  Pac.  Rep.  156,  158.  There  is  evidently  a  mistake  in  the  statement 
of  the  court  in  this  case.  Undoubtedly,  the  rule,  as  stated  in  the  text, 
was  intended  to  be  expressed. 

Material  alteration  vitiating  contract.  Increased  cost,  $25,  in  O'Neal 
V.  Kelley,  65  Ark.  550,  47  S.  W.  Rep.  409;  increase  of  $231  over  con- 
tract price  of  $31,000,  in  Beers  v.  Wolf,  116  Mo.  179,  22  S.  W.  Rep.  620. 


557  THIRD  PERSONS  —  SURETIES.  §  615 

§  615.  Original  contract  as  basis  of  liability.  The  sure- 
tias  liave  a  right  to  sliow  that  the  original  contract  sued  on 
was  not  the  contract  under  which  tlie  work  was  done,  in 
those  cases  where  there  has  been  a  modification  of  the  origi- 
nal contract,  and  the  building  completed  in  accordance  with 
the  contract  as  thus  modified.-" 

Changes  in  contract  authorized  by  contract.  Where  a  con- 
tract was  made  by  a  school  board  for  the  construction  of  a 
public  school  building,  and  the  contractor  gave  a  bond  for 
the  performance  of  the  contract,  under  which  the  board 
could  alter  the  contract,  and  the  alterations  should  in  no 
way  affect  or  avoid  the  same,  etc.,  changes  as  to  the  plan  of' 
the  building,  within  the  scope  of  the  provision  of  the  con- 
tract, do  not  relieve  the  sureties  from  liability.-* 

Oregon,  Changes* in  contract,  materially  changing,  varying,  or  in- 
creasing the  risk,  release  sureties,  but  otherwise  if  with  their  con- 
sent: Enterprise  H.  Co.  v.  Book  (Oreg.,  May  1,  1906),  85  Pac.  Rep.  333, 
334. 

Provision  in  contract  for  benefit  of  contractor,  that  alterations 
sliould  be  made  in  ^vritinj?,  may  be  waived  by  him;  and  where  the 
bond  provides  that  any'  departure  from  the  specifications  or  alterations 
in  the  same  should  not  avoid  the  bond,  the  sureties  are  liable:  Enter- 
prise H.  Co.  v.  Book   (Oreg.,  May  1,  1906),  85  Pac.  Rep.  333,  334. 

W'ashington.  A  surety  cannot  insist  upon  anything  constituting  a 
breach  which  the  owner  does  not  insist  upon,  unless  he  shows  that 
the  breach  operated  in  some  manner  to  his  prejudice:  Beebe  v.  Red- 
ward,  35  TVash.  615,  77  Pac.  Rep.  1052.   1055. 

Guaranty  company  -tvliicli,  for  a  couiiien.sation,  becomes  .surety  upon 
a  l»ond,  given  by  a  building  c«(ntractor  for  the  faithful  performance  of 
hia  contract,  cannot  escape  liability  by  reason  of  variance  from  the 
exact  terms  of  the  contract,  where  such  provisions  were  waived  by  t!)e 
contractor,  and  no  damage  is  shown  as  resulting  to  the  surety  by 
reason  thereof:  Friend  v.  Ralston,  35  W^ash.  422,  77  Pac.  Rep.  794,  7D7 
(failure  of  owner  to  pay  contractor  in  full). 

Surety's  Iial>ility  on  cliange  of  plans  at  additional  co.st :  See  Oving- 
ton  V.  ^^iltna  I.  Co.,  36  Wash.  473,  78  Pac.  Rep.  1021;  and,  generally, 
unless  such  notice  is  given  within  the  time  specified,  the  damages  are 
waived:  Trinity  Parish  v.  ^tna  I.  Co.,  37  Wash.  515,  79  Pac.  Rep.  1097. 
See  Remington  v.  Fidelity  &  D.  Co.,  27  Wash.  429,  67  Pac.  Rep.  989. 

Application  of  payment.s  for  benefit  of  surety:  See  Crane  Co.  v. 
Pacific  H.  &  P.  Co.,  36  W^ash.  95,  78  Pac.  Rep.  460,  86  Id.  849. 

Alterations  in  work,  order  of  architect:  See  Drumheller  v.  American 
S.  Co.,   30  Wash.   530,   71   Pac.   Rep.   25,   29. 

Contract  providing  tliat  owner  should  pay  receipted  bills  as  they 
became  due  does  not  release  the  surety,  where  the  owner  required 
sucli  bills  to  be  approved  by  the  foreman  in  charge:  Crowley  v. 
United  States  F.  &  G.  Co..  zO  Wash.  268,  69  Pac.  Rep.  784. 

'■"  People's  L.  Co.  v.   Gillard,   136  Cal.   55.   62,   68  Pac.  Rep.   576. 

"  People's  L.  Co.  v.  Gillard,   136  Cal.   55,   62,   68   Pac.  Rep.   576. 

See  li  614,  ante. 

Action  on  bond;  change  of  contract:  See  People's  L.  Co.  v.  Gillard, 
136  Cal.  55,  61,  68  Pac.  Rep.  576. 


§§  616,  617  mechanics'  liens.  558 

§  616.  Auditing  accounts,  as  provided  in  contract.  Where 
the  owner  finishes  an  abandoned  contract  at  a  cost  greater 
than  the  price  provided  in  the  contract,  a  clause  therein,  that, 
under  such  circumstances,  "  the  expense  incurred  by  the 
owner  shall  be  audited  and  certified  by  the  architects,  whose 
certificate  thereof  shall  be  conclusive  between  the  parties," 
makes  the  certificate  a  condition  precedent,  and  the  sureties 
on  the  contractor's  bond  for  the  faithful  performance  of  the 
contract  are  not  liable  without  such  certificate ;  and  even 
where  the  owner  discharged  the  architects  on  the  ground 
that  they  were  careless,  incompetent,  and  dishonest,  unless 
found  to  be  so  by  the  court,  or  there  was  a  sufficient  excuse 
for  not  having  the  amount  audited  and  certified  by  the  archi- 
tects, such  as  a  refusal  on  their  part  to  do  so,  or  that  they 
acted  fraudulently  or  corruptly,  or  through  mistake,  no  re- 
covery can  be  had  against  the  sureties.-^ 

§  617.  Construction  of  bond.  The  general  subject  of  the 
construction  of  bonds  will  not  be  considered,  but  the  cases 
decided  in  the  jurisdictions  herein  considered,  relating  to  the 
title  of  this  work,  will  onl.y  be  set  forth. 

Kvidence  and  pleading.  Contract  for  liquidated  damages  against 
sureties:  See  Long  Beach  School  Dist.  v.  Dodge,  135  Cal.  401,  405,  67 
Pac.  Rep. '499. 

Oregon.  Surety  bound  by  the  express  terms  of  contract:  Enter- 
prise H.  Co.  V.  Book  (Oreg.,  May  1,  1906),  85  Pac.  Rep.  333,  334. 

Bond  conilitioned  for  the  faithful  perforniance  by  tlie  contractor  of 
"  all  the  terms,  covenants,  and  conditions  "  of  his  contract,  incor- 
porates contract  in  bond:  Ausplund  v.  ^Etna  I.  Co..  47  Oreg.  10,  81  Pac. 
Rep.   577.     See  McKinnon  v.  Higgins,  47  Oreg.  44,  81  Pac.  Rep.  581. 

AA'ashington.  Where  a  compensated  surety  is  not  damaged  by  an 
extension  of  time  for  contractor  to  complete  the  work,  surety  is  Hable 
for  contractor's  failure  to  pay  claims  for  labor  and  materials:  Henry 
V.  JEtna  I.  Co.,  36  W^ash.  553,  sub  nom.  Henry  v.  Flynn,  79  Pac.  Rep.  42. 
See  Cowles  v.  United  States  F.  &  G.  Co.,  33  Wash.  120,  72  Pac.  Rep. 
1032,  98  Am.  St.  Rep.  838. 

Surety  is  liable,  even  though  variances  from  the  contract  are  made 
by  tlie  original  contractor  and  subcontractor,  if  they  were  allowed  by 
the  original  contract.  Such  bonds  are  contracts  for  compensation, 
and  not  insurance  contracts:  Pacific  B.  Co.  v.  United  States  F.  &  G.  Co., 
33  Wash.  47,  73  Pac.  Rep.  772. 

Where  contract  and  bond  contemplate  employment  of  subcon- 
tractors, performance  of  part  of  work  by  owner  not  discharging 
sureties:  See  Drumheller  v.  American  S.  Co.,  30  W^ash.  530,  71  Pac.  Rep. 
25. 

=5  Tally  V.  Parsons,  131  Cal.  516,  520,  63  Pac.  Rep.  833. 

See  §§  238  et  seq.,  ante. 


559  THIRD   PERSOXS  —  SURETIES.  §617 

"  Claims  accruing."  A  provisiou  in  a  bond,  whereby  the 
sureties  bound  themselves  to  pay  all  "  claims  that  may  have 
accrued  against  the  said  building  by  reason  of  the  aforesaid 
erection,"  does  not  make  the  sureties  liable  for  releasing 
liens  which  could  not  be  legally  enforced  against  the  build- 
ing, as  such  claims  cannot  be  said  to  have  "  accrued  "  against 
it.-« 

Performing  obligation  of  void  contract.  Where  there  is 
no  covenant  in  a  building  contract  that  the  building  shall  be 
delivered  free  from  liens,  nor  that  liens  shall  not  be  placed 
upon  it,  and  the  contractor  completed  the  work  within  the 
time  and  according  to  the  plans  and  specifications  of  the 
contract,  and  he  was  paid  the  full  amount  of  the  contract 
price,  and  no  complaint  is  made  as  to  the  contract  not  being 
complied  with,  the  sureties  are  not  responsible  for  subclaira- 
ants'  liens  on  the  building,  although  the  contract  was  void 
and  the  liens  were  valid,  such  liability  not  falling  within  the 
condition  of  the  bond  that  the  contractor  should  perform  the 
obligations  of  his  contract.-' 

Money  advanced  not  "  materials,"  within  obligation. 
Where  the  undertaking  of  the  sureties  is  to  pay  all  persons 
performing  labor  or  furnishing  materials  to  the  contractor, 
the  sureties  are  not  liable  to  third  parties  who  advanced 
money  to  the  contractor,  such  money  not  being  materials, 
within  the  meaning  of  the  contract  of  suretyship.^^ 

==«  Brill  V.  De  Tvirk,  130  Cal.  241,  244,  62  Pac.  Rep.  462. 

='  Boas  V.  Maloney,  138  Cal.  105,  107,  70  Pac.  Rep.  1004.  See  Gato  v. 
Warrington,  37  Fla.  542,  19  So.  Rep.  883;  Crowley  v.  United  States  F. 
&  G.  Co.,  29  Wash.  268,  69  Pac.  Rep.  784. 

^  Cadenasso  v.  Antonelle,  127  Cal.  382,  386,  59  Pac.  Rep.  765,  ap- 
proved in  Boas  v.  Maloney,  138  Cal.  105,  108,  70  Pac.  Rep.  1004.  See 
Boas  V.  Maloney,  138  Cal.  105,  107,  70  Pac.  Rep.  1004;  Godeffroy  v. 
Caldwell,  2  Cal.  489,  492. 

Hawaii.     See  Haokfeld  v.  Hilo  R.  Co.,   14  Hawn.   448,  454. 

Illinois.     City  of  Sterling  v.  Wolf,  163  111.  467,  45  N.  E.  Rep.  218. 

Minnesota.     Simonson  v.  Grant,  36  Minn.  439,  31  N.  W.  Rep.  861. 

See  §§  87  et  seq.,  ante. 

Oregon.  Bond  construed  as  indemnity  against  damages,  rather 
than  against  liability — -nominal  damages:  See  Henry  v.  Hand,  36 
Oreg.  492,  59  Pac.  Rep.  330. 

AVasIiing-ton.  Bond  to  be  construed  with  reference  to  the  gathered 
intention  of  the  parties  to  the  contract,  and  whatever  is  binding  upon 
them  is  binding  upon  the  surety,  who  becomes  a  party  to  the  contract, 
identified  with  the  contractor:  Cowles  v.  United  States  F.  &  G.  Co.,  32 
Wash.  120,  72  Pac.  Rep.  1032,  98  Am.  St.  Rep.  838. 


§  618  MECHzVNICS'    LIENS.  560 

§  618.  Surety'5  rights.  Notice.  It  has  been  intimated 
that  the  surety  is  entitled  to  notice  of  the  action  to  foreclose 
the  liens  and  have  the  same  properly  defended.^^  But,  how- 
ever this  may  be,  in  the  absence  of  a  provision  therefor  in 
the  bond,  no  notice  or  demand  was  required,  with  respect  to 
the  contractor's  bond,  under  section  twelve  hundred  and 
three  of  the  Code  of  Civii  Procedure,  which  was  subse- 
quently declared  unconstitutional,  although  the  provision 
was  held  constitutional  in  the  case  cited.^'* 

Where  the  bond  provided  that  the  contractor  ^vould  "  faithfully 
comply  with  all  the  terms  "  of  the  contract,  one  of  the  terms  being  that 
he  should  furnish  all  the  materials,  the  sureties  are  liable  to  the  owner 
for  materials  unpaid  for.  and  the  owner  need  not  previously  have 
paid  tlie  claims  therefor:  Trinity  Parish  v.  .^tna  I.  Co.,  37  Wash.  515, 
79  Pac.  Rep.  1079,  explaining:  and  distinguishing  Friend  v.  Ralston, 
35  Wash.  422,  77  Pac.  Rep.  794. 

ProvLsion  in  contract  for  the  faithful  performance  of  -t^hieh  a  bond 
is  given,  requiring  contractor  to  furnish  materials,  means  that  he 
should  pay  for  them,  and  not  that  he  should  simply  supply  them  and 
leave  the  owner  to  pay  for  them:  Crowley  v.  United  States  F.  &  G.  Co., 
29  Wash.  268,  69  Pac.  Rep.  784;  Wheeler,  Osgood  &  Co.  v.  Everett  L. 
Co.,  14  Wash.  630,  45  Pac.  Rep.  316. 

-^  Ernst  V.  Cumniings,  55  Cal.  179,  183.  But  see  Kerr's  Cyc.  Civ. 
Code,  §§  2831  et  seq.,  and  notes. 

"^  Carpenter  v.  Furrey,  128  Cal.  665,  668,  61  Pac.  Rep.  369. 

See  §  39,  ante. 

Arizona.  The  provision  of  Rev.  Stats.  1901,  par.  3551,  apply  to  a 
contractor's  bond,  and  the  surety  may  require,  by  notice  in  writing, 
the  creditor  or  obligee  forthwith  to  institute  suit,  and  a  notice  pre- 
cisely following  the  language  of  the  statute  complies  therewith, 
without  reciting  that  the  right  of  action  has  accrued,  or  that  the 
surety's  intention  was  to  avail  himself  of  the  discharge  provided  for 
by  par.  3552:  Prescott  N.  Bank  v.  Head  (Ariz.,  May  25,  1907),  90  Pac. 
Rep.  328. 

Colorado.  Notice  to  surety  company,  by  one  of  its  agents,  at  the 
request  of  obligee,  sufficient,  where  a  bond  required  notice  to  com- 
pany at  its  principal  office,  by  mail:  See  Routt  v.  Dils  (Colo.,  May  6, 
1907),   90  Pac.  Rep.  67. 

Xotice  to  surety  of  contractor's  failure  to  perform  contract  "  forth- 
with," or  "as  soon  as  possible,"  or  "immediately,"  satisfied  by  due 
diligence,  under  the  circumstances  of  the  case,  and  is  ordinarily  a 
question  of  fact,  unless  the  facts  are  undisputed:  Routt  v.  Dils  (Colo., 
May  6,  1907),   90  Pac.  Rep.   67. 

Sureties  completing  contract  on  death  o£  contractor,  reaffirming 
obligation,  and  agreeing  to  pay  Ijills  arising  out  of  original  contract, 
although  lien  fails,  personal  judgment  obtained  against  owner:  See 
Hughes  V.  Gibson,  15  Colo.  App.  318.  62  Pac.  Rep.  1037. 

Idaho.  Surety  has  the  right  to  complete  contract,  when  so  pro- 
vided in  bond:  American  B.  Co.  v.  Regents,  81  Pac.  Rep.  604,  610  (com- 
pensated surety). 

Where  the  surety  is  n.otified  that  the  contractor  had  defaulted,  and 
assumes  to  carry  out  the  terms  of  tlie  contract,  as  permitted  by  the 
bond,  the  surety  becomes  liable  to  the  obligee  for  all  inferior  work 
done  by  the  contractor,  and  agrees  to  make  good  any  defects  in  his 


561  THIRD   PERROXS  —  SURETIES.  §619 

§  619.  Surety  as  lien  claimant.  But,  under  a  void  con- 
tract,^^  as  well  as  under  a  valid  contract,''-  it  has  been  held 
that  a  claimant  is  not  barred  from  coming  into  court  with 
his  cause  of  action  to  foreclose  a  lien,  even  though  he  is  a 

work  or  materials,  both  before  and  after  it  assumed  the  contract: 
American  B.  Co.  v.  Regents  (Idaho,  July  11,  1905),  81  Pac.  Rep.  604, 
610    icompensated  surety). 

Oregou.  Surety,  carrying  out  contract  of  contractor,  is  subrogated 
to  the  latter's  rights  and  obligations  under  the  contract:  Ausplund  v. 
^Etna  I.  Co.,  47  Oreg.  10,  81  Pac.  Rep.  577. 

Contractor  failing  to  keep  building  free  from  liens,  as  agreed,  last 
payment  cannot  be  demanded  lay  sureties:  See  Henry  v.  Hand,  36 
Oreg.  492,  59  Pac.  Rep.  330;  and  see  Hand  M.  Co.  v.  Marks,  36  Oreg. 
523,  59  Pac.  Rep.   549,   552   (deed  of  land  and  part  payment). 

Washington.  Where  the  bond  provided  for  immediate  notice  of 
the  breach  of  the  contract,  and  fixed  a  period  within  which  suit  must 
be  brought  thereafter,  action  must  be  commenced  by  the  owner  within 
the  prescribed  period  after  knowledge  of  the  breach,  and  he  should 
notify  the  sureties:  Novelty  M.  Co.  v.  Heinzerling,  39  Wash.  244,  81 
Pac.   Rep.   742.     See  Henry  v.  Flynn,   36  Wash.   553,   79   Pac.   Rep.   42. 

AViiere  bond  provide.s  that  surety  should  be  notified  of  any  act  of 
contractor  which  inight  create  a  liability  on  the  part  of  the  surety, 
immediately  after  owner's  knowledge  of  act,  notice  of  subclaimants' 
demands,  given  on  the  day  succeeding  that  on  which  the  various 
claims  of  lien  were  filed  against  the  building,  is  in  time,  although  the 
owner  had  previous  notice  of  the  furnishing  of  such  materials  to  the 
contractor:  W'ashington  S.  I.  Co.  v.  Flynn,  38  W^ash.  701,  80  Pac.  Rep. 
544:  Denny  v.  Spurr,  38  Wash.  347,  80  Pac.  Rep.  541.  See  Ovington  v. 
..Etna  I.  Co.,  36  Wash.  473,  78  Pac.  Rep.  1021:  Heffernan  v.  United 
States  F.  &  G.  Co..  37  W^ash.  477,  79  Pac.  Rep.  1095. 

Surety  Is  estopped,  in  action  on  bond,  by  a  judgment  of  o^vner 
against  contractor  for  breach  of  contract,  obtained 'in  good  faith, 
witliout  fraud  or  collusion,  where  surety  had  due  notice  of  suit  against 
contractor,  and  was  offered  the  defense  thereof:  Friend  v.  Ralston,  35 
Wash.  422,  77  Pac.  Rep.  794;  Henry  v.  Flynn,  36  Wash.  553,  79  Pac. 
Rep.  42.  See  Douthitt  v.  MacCulsky,  11  Wash.  601,  40  Pac.  Rep.  186; 
Doremus  v.  Root,  23  Wash.  710,  716;  63  Pac.  Rep.  572,  54  L.  R.  A.  649; 
Trinity  Parish  v.  ^Etna  I.  Co.,   37  W'ash.  515,  79  Pac.  Rep.  1097. 

Refusal  of  owner  to  arbitrate.  Kvidence.  Tlie  fact  tliat  an  owner 
had  refused  to  arbitrate  the  reasonable  value  of  extras,  as  provided 
In  the  contract,  was  admissible,  in  an  action  on  the  bond,  since  the 
surety  was  entitled  to  have  the  same  offset  pro  tanto  against  the 
owner's  claim:  Crowley  v.  United  States  F.  &  G.  Co.,  29  W'ash.  268,  69 
Pac.  Rep.  784. 

Notice  or  knowledge  of  default  t>t  contractor  by  owner:  See  Henry 
V.  Flynn,  36   Wash.  ^,^o.  79  Pac.  Rep.  42. 

=■  Schallert-Ganahl  I..  Co.  v.  Neal,  90  Cal.  213,  215,  27  Pac.  Rep.  192; 
Blyth   V.  Torre    (Cal.,   Dec.   14,   1894),  38  Pac.  Rep.   639. 

•''-  Patent  B.  Co.  v.  Moore,  75  Cal.  205,  207,  16  Pac.  Rep.  890;  Blyth 
V.  Torre  (Cal..  Dec.  14,  1894),  38  Pac.  Rep.  639.  See  Bragg  v.  Shain. 
49  Cal.  131,  136. 

Pleading  estoppel:  See  Hubbard  v.  I.,ee  (Cal.  App..  Oct.  11,  1907),  92 
Pac.  Rep.  744. 

Arizona.  Bond  requiring  the  contractor  to  pay  lien  claim.<::  See 
Prescott  Nat.  Bank  v.  Head  (Ariz.,  IMay   25,  1907),  90  Pac.  Rep.  328.  330. 

Montana.  Eakins  v.  Frank,  21  Mont.  192,  53  Pac.  Rep.  538,  contra. 
Mech.  Liens  —  36 


§  620  mechanics'  liens.  562 

surety  for  the  contractor,  to  protect  the  owner  against  the 
default  or  negligence  of  the  contractor;  for,  until  the 
damages  have  been  alleged  and  proven  in  some  proper 
action,  it  is  rather  a  question  of  cross-complaint  or  set-ofE 
than  of  estoppel."^  This  doctrine  of  estoppel,  however,  in 
the  light  of  a  subsequent  decision,  stated  in  the  following 
section,  loses  much  force  and  meaning,  even  if  the  authorities 
here  cited  have  not  been  impliedly  overruled. 

§  620.     Surety  under  legal  obligation  not  to  foreclose  lien. 

Notwithstanding  the  fact,  as  stated  in  the  last  preceding 
section,  that  it  had  been  held  that  a  surety  on  a  contractor's 
bond,  conditioned  against  the  filing  of  liens,  was  not 
estopped  to  foreclose  such  lien,  it  was  subsequently  deter- 
mined that  — • 

Where  the  contractor's  sureties  furnish  materials  to  him, 
and  duly  file  a  claim  of  lien  against  the  building  therefor, 
and  the  owner  gives  them  a  note  to  cancel  the  lien,  there 
being  no  evidence  that  the  note  was  given  to  compromise  a 
doubtful  claim,  it  is  without  any  legal  consideration  to  sup- 
port it,  and  as  to  the  forbearance  of  the  sureties  to  foreclose 
the  lien,  they  w^ere  already  under  a  legal  obligation  not  to 
foreclose  the  same,  the  bond  providing  that  the  structure 

33  Blyth  V.  Torre  (Cal.,  Dec.  14,  1894),  38  Pac.  Rep.  639.  In  this  case 
the  bond  seems  to  indemnify  against  damage,  but  in  the  syUabus, 
against  liens.  The  case  was  dismissed,  after  rehearing  granted.  The 
question  of  mere  waiver  was  not  discussed  in  the  opinion.  See  Man- 
grum  V.  Truesdale,  128  Cal.  145,   146,  60  Pac.  Rep.   775. 

Arizona.  Prescott  N.  Bank  v.  Head  (Ariz.,  May  25,  1907),  90  Pac. 
Rep.   328,   330. 

ColoraUo.  Aste  v.  WMlson,  14  Colo.  App.  323.  59  Pac.  Rep.  846  (sub- 
contractors). 

Hawaii.  Under  a  bond  to  deliver  the  building  free  from  liens  and 
claims,  surety  is  not  estopped  to  assert  lien:  Allen  v.  Lincoln,  9  Hawn. 
364. 

Montana.     See  Eakins  v.  Frank,  21  Mont.  192,  53  Pac.  Rep.  538. 

Oregon.  Surety  estopped  to  file  claim  of  lien,  but  if  owner  dis- 
charges surety  from  obligation  of  bond,  lien  may  be  enforced:  Hand 
M.  Co.  v.  Maries,  36  Oreg.  523,   59  Pac.  Rep.  549,  551. 

W'asliington.  But,  in  this  state,  it  is  held  that  such  surety  cannot 
file  and  enforce  a  lien  against  the  building,  although  the  owner  may 
in  fact  be  indebted  at  the  time  to  the  contractor:  Spears  v.  Lawrence, 
10  Wash.  368.  38  Pac.  Rep.  1049,  45  Am.  St.  Rep.  789;  Moise  v.  Mans- 
field, 10  Wash.  373,  38  Pac.  Rep.  1050;  Todd  v.  Franzvog  (Wash.,  Nov. 
27.  1906),  87  Pac.  Rep.  831;  Kent  L.  Co.  v.  Ward,  37  Wash.  60,  79  Pac 
Rep.  485. 


563  THIRD   PERSONS  —  SURETIES.  §  621 

should  be  delivered  free  from  all  liens ;  and  in  canceling  this 
lien  they  conferred  no  benefit  upon  the  defendant  to  which 
he  wa3  not  already  legally  entitled,  and  themselves  suffered 
no  detriment  they  were  not  already  legally  bound  to  suffer, 
and  this  is  not  a  sufficient  consideration  for  the  note ;  and 
even  if  it  has  sufficient  consideration  to  support  it,  the  sure- 
ties cannot  recover,  at  least  not  beyond  the  amount  of 
damage  counterclaimed  by  the  owner;  for  it  was  given  for 
the  purpose  of  discharging  one  of  the  liens  against  which 
plaintiffs,  as  sureties,  undertook  to  indemnify  the  defendant, 
and  immediately  upon  the  payment  of  such  note,  a  cause  of 
action  would  arise  by  virtue  of  the  bond  in  favor  of  the 
owner  against  the  sureties  for  the  amount  so  paid;  and, 
under  such  circumstances,  and  to  avoid  circuity  of  action, 
the  defendant  should  be  permitted  to  interpose  the  plaintiff's 
liability  upon  the  bond  as  a  defense. 

The  sureties  are  not  released  from  their  obligation  as 
sureties  for  tlie  contractor,  and  no  such  legal  effect  was 
worked  out  by  the  mere  fact  that  the  owner  executed  the 
note  sued  on,  under  the  circumstances  stated ;  and  even  if 
the  note  were  given  under  the  mistaken  belief  that  the  bond 
was  void  because  the  statutory  original  contract  was  void,  it 
did  not  destroy  the  obligation  of  the  bond.^'* 

§  621.  Oblig-ee  of  bond  destroying  security  of  surety. 
When  the  principal  has  left  a  sufficient  fund  in  the  hands  of 

"  Blyth  V.  Robin.son,  104  Cal.  239,  242,  37  Pac.  Rep.  904.  In  this 
case  there  was  no  evidence  that  the  note  was  given  to  compromise  a 
doubtful  claim.  See  Stimson  M.  Co.  v.  Riley  (Cal.,  Dec.  20,  1895),  42 
Pac.  Rep.  1072. 

See  "Answer,"  §§  746  et  seq.,  post;  "Estoppel,"  §§  816  et  seq.,  post. 

Utah.  Surety  on  bonds  conditioned  against  liens  or  claims  not  en- 
titled to  lien:  Smith  v.  Bowman  (Utah,  Jan.  15,  1907),  88  Pac.  Rep.  687, 
9  L.  R.  A.  (N.  S.)  889. 

\Vasliins'ton.  But  see  Dibble  v.  De  Mattos,  8  Wash.  542,  36  Pac. 
Rep.  ISfi.  in  which  it  was  held  that  wliere  surety  paid  the  laborers  of 
the  absconding  contractor,  upon  the  promise  of  tlie  owner  to  repay 
the  same  to  tlie  surety,  so  that  work  could  progress  at  once,  there  was 
a  sufficient  consideration  for  tlie  promise  (Stiles  and  Hoyt,  JJ.,  dis- 
senting), and  that  it  was  not  within  the  statute  of  frauds  as  a 
promise  to  answer  for  the  del)t  of  another,  but  an  original  under- 
taking: Dibble  V.  De  Mattos,  S  Wash.  .''.42,  36  Pac.  Rep.  485. 

The  contract  may  be  rescinded  by  the  o^vner  and  surety,  so  far  as 
the  surety  is  concerned,  in  the  absence  of  the  principal:  Gottstoin  v. 
Seattle  L.  &  C.  Co.,  7  Wash.  424,  35  Pac.  Rep.  133. 


§  622  mechanics'  liens.  564 

the  obligee,  and  he  thinks  fit,  instead  of  retaining  it  in  his 
hands,  to  pay  it  back  to  the  principal,  the  surety  cannot  be 
called  upon.^° 

Where  a  contractor  assigns  to  one  of  his  sureties  checks 
given  him  for  government  work,  as  security,  at  least,  for 
such  surety's  advances  to  him,  under  section  two  thousand 
eight  hundred  and  forty-nine  of  the  Civil  Code,  the  other 
surety  is  entitled  to  the  benefit  of  the  securities  thus  held  by 
the  first  surety.^*^ 

§  622.  Premature  payments.  Generally.  Premature  pay- 
ments made  by  owner,  not  authorized  by  the  contract,  ei5;on- 
erate  the  sureties.^^     Results  following  the  failure  of  the 

^  Kiessig-  V.  Allspaugh,  91  Cal.  231,  232,  27  Pac.  Rep.  662,  13  L.  R.  A. 
418. 

See  note  13  L.  R.  A.  418. 

3»  National  Bank  v.  Schirm,  3  Cal.  App.  696,  86  Pac.  Rep.  981. 

See  IverrVs  Cyc.  Civ.  Code,  §  2849,  and  note. 

Oregon.  Second  bond,  taken  as  additional  security,  does  not  dis- 
charge surety:  Hand  M.  Co.  v.  Marks,  36  Oreg.  523,  59  Pac.  Rep.  549, 
552. 

"'  Glenn  County  v.  Jones,  146  Cal.  518,  80  Pac.  Rep.  695,  distin^fuiNli- 
ing  Hand  M.  Co.  v.  Marks,  36  Oreg.  523,  52  Pac.  Rep.  512,  criticizing 
Fidelity  &  D.  Co.  v.  Robertson,  136  Ala.  379,  34  So.  Rep.  933,  and 
Meyers  v.  Wood,  26  Tex.  Civ.  App.  591,  65  S.  W.  Rep.  671. 

Arizona.  See  Prescott  N.  Bank  v.  Head  (Ariz.,  May  25,  1907),  90 
Pac.  Rep.  328. 

Montana.  A  surety  upon  a  contract  providing  that  the  men  shall 
be  paid  by  the  owner  upon  time-checks  signed  by  the  contractor,  who, 
with  knowledge  of  such  provision,  and  that  the  contract  price  is  ex- 
hausted, instructs  the  owner  to  pay  the  men,  thereby  waives  the  right 
to  object  that  the  time-checks  were  not  signed  by  the  contractor: 
Hamilton  v.   Woodworth,  17  Mont.  327,  42  Pac.  Rep.  849. 

Nevada.  Where  the  bond  provides  that  "  it  is  to  secure  the  plain- 
tiff, and  keep  it  harmless  from  all  liens  and  claims  of  liens,"  it  is 
purely  a  contract  of  indemnity,  and  is  not  violated  by  simply  permit- 
ting liens  to  be  filed:  Carson  Opera  House  Assoc,  v.  Miller,  16  Nev.  327. 
See  Jones  v.  Childs,  S  Nev.  121,  125. 

Sureties  are  exonerated  -wlien  the  owner  retains  a  portion  of  the 
contract  price  to  pay  such  claims  before  suit  brought  thereon,  the 
statute  allowing  such  retention  only  "  during  the  pendency  of  such 
action":  Carson  Opera  House  Assoc,  v.  Miller,  supra.  See  Truckee 
Lodge  V.  Wood,  14  Nev.  293,  309,  for  various  acts  of  owner  exonerat- 
ing sureties,  such  as  failure  to  make  weekly  payments  and  to  retain 
certain  moneys  as  agreed,  and  changing  terms  of  contract. 

Olvlalionia.  Changes  in  work,  permitted  by  contract  and  bond,  held 
not  to  relieve  sureties:  American  S.  Co.  v.  Scott  (OkL,  Feb.  14,  1907), 
90  Pac.  Rep.  7. 

Advanee.s  to  contractor.,  prematurely  made,  where  no  loss  accrued 
to  surety  or  contractors,  do  not  release  surety:  American  S.  Co.  v. 
Scott  (Okl.,  Feb.  14,  1907),  90  Pac.  Rep.  7, 


565  THIRD   PERSONS  — ■  SURETIES.  §  622 

owner  to  comply  with  section  eleven  hundred  and  eighty- 
four  ^^  are  not  material  upon  matters  pertaining  to  the  bond. 

Advances  must  be  proiierly  made:  See  4  Am.  &  Eng.  Ann.  Cas.  615. 

Oregon.  Premature  pa>'ment  absolutely  discharges  surety:  Weh- 
rung  V.  Denham,  42  Oreg.  386,  71  Pac.  Rep.  133,  135,  overruling  Cochran 
V.  Baker,  34  Oreg.  555,   56  Pac.  Rep.  641,  52  Id.  520. 

Unle.ss  payment  ^vas  made  with  the  knowledge  and  eon.sent  of  the 
surety:  Enterprise  H.  Co.  v.  Book  (Oreg.,  May  1,  1906),  85  Pac.  Rep. 
333,  334.  See  Hand  M.  Co.  v.  Marks,  36  Oreg.  523,  52  Pac.  Rep.  512,  53 
Id.  1072,  59  Id.  549;  Wehrung  v.  Denham,  42  Oreg.  386,  71  Pac.  Rep.  133, 
135    (no  compensated  surety). 

It  was  formerly  held  that  the  sureties  are  only  exonerated  pro 
tanto,  if  a  payment  Is  prematurely  made:  Cochran  v.  Baker,  34  Oreg. 
555,  56  Pac.  Rep.  641.  See  also  Thompson  v.  CofEman,  15  Oreg.  631,  635, 
16  Pac.  Rep.  713. 

Bond  providing  payments  made  prematurel.v  should  not  siffect  the 
obligation  of  sureties,  held  not  to  release  sureties:  hJnterprise  H.  Co. 
V.  Book   (Oreg.,  May  1,  1906),  85  Pac.  Rep.  333,  334   (extra  work). 

AVaiver  of  defense  of  premature  payment  by  provision  in  bond:  See 
Enterprise  H.  Co.  v.  Book   (Oreg.,  May  1,  1906),  85  Pac.  Rep.  333,   334. 

Where  owner  pays  amounts  due  on  contractor's  orders  on  arclii- 
tect's  certificates,  as  required  in  the  bond,  under  agreement  with  con- 
tractor, surety  not  exonerated:  Hand  M.  Co.  v.  Marks,  36  Oreg.  523,  59 
Pac.  Rep.   549,   552. 

Washington.     Peters  v.  Mackay,  20  W^ash.  172,  54  Pac.  Rep.   1122. 

Sureties  are  not  discharged  l»y  deviations  from  specifications  in  tlie 
construction  of  the  building,  nor  even  by  material  alterations,  where 
the  contract  itself  permits  such  alterations:  De  Mattos  v.  Jordan,  15 
Wash.  378,  46  Pac.  Rep.  402;  especially  where  the  suretj',  with  the 
knowledge  of  the  proposed  changes,  agrees  to  furnish  tlie  necessarj^ 
mill-work  therefor:  WHieeler  v.  Everett  L.  Co.,  14  Wash.  630,  45  Pac. 
Rep.  316. 

Nor  are  the  sureties  released  where  the  payments  under  the  con- 
tract were  to  be  made  monthly,  as  the  work  progressed,  upon  the 
architect's  estimates,  and  the  owner  accepts  an  order  from  the  con- 
tractor in  favor  of  the  material-man,  payable  upon  the  day  the  esti- 
mate becomes  due,  although  a  small  amount  thereof  is  paid  in 
advance  as  an  accommodation  to  the  material-man:  De  Mattos  v. 
Jordan,  supra.  Nor  are  they  released,  it  seems,  even  if  the  owner 
pays  the  contractor  part  of  the  contract  price  by  returning  notes 
made  by  the  contractor  (dictum):  Id.  Nor  because  the  contractor  was 
compelled  to  pay  his   (the  contractor's)   debts  to  other  parties:  Id. 

Damages,   burden  of  proving,  on  <nvncr.  and   extent   of:   Id. 

Sureties  not  liable  as  contractors  when.  In  Stetson  &  P.  M.  Co.  V. 
McDonald,  5  Wash.  496,  it  was  held  that  persons  who  were  to  be  sure- 
ties, but  who  signed  the  original  contract  instead  of  the  bond,  were 
not  liable  as  contractors,  the  materials  being  charged  to  the  con- 
tractors, and  being  furnished  solely  on  their  credit,  it  not  being 
known  to  the  claimant,  at  the  time  of  furnishing  the  materials,  that 
the  sureties  were  parties  to  the  original  contract.  But  see  Thompson 
V.  Coffman,  15  Oreg.  631,  16  Pac.  Rep.  713.  A  provision  in  tlie  bond 
that  the  contractor  should  furnish  the  materials  must  be  construed 
to  mean  that  he  will  pay  for  them;  otherwise  the  sureties  are  liable: 
Wheeler  v.  Everett  Land  Co.,   14  Wash.  630,   45  Pac.  Rep.  316. 

Sureties  not  injured  i»y  irregular  payments,  whether  amount  was 
loan,  or  advancement  under  tlie  contract:  See  Leghorn  v.  Nydell,  39 
Wash.   17,    80  Pac.   Rep.   833. 

»«  Kerr's  Cyc.  Code  Civ.  Proc,  §  1184. 


§  623  MECHANICS*   LIENS  566 

Premature  payments  amount  to  nothing  in  certain  cases  of 
lien  claimants,  but,  under  other  circumstances,  they  are 
payments  in  every  sense  of  the  word,  so  far  as  the  liability 
of  sureties  is  concerned.'''' 

Thus  where  a  subclaimant  was  the  original  contractor's 
surety,  and  the  bond  provides  that  it  is  independent  of  any 
question  as  to  the  validitj^  of  the  original  contract,  and  that 
its  terms  may  be  changed  by  the  contracting  parties  without 
affecting  its  validity,  and  was  to  save  and  keep  the  owner 
harmless  from  all  actions,  costs,  damages,  etc.,  by  reason  of 
any  claim  growing  out  of  the  building  to  be  erected,  except 
the  stipulated  price,  upon  a  premature  payment  of  such  price 
by  the  owner  to  the  contractor  under  section  eleven  hundred 
and  eighty-four,  the  subclaimant  cannot  foreclose  a  lien  for 
the  amount  so  paid.^° 

§  623.  Same.  Intermediate  instalments.  And  where  the 
bond  provides  that  the  contractor  is  to  deliver  the  building 
free  from  all  liens,  and  provides  for  payments  of  seventy-five 
per  cent,  to  be  made  in  instalments,  and  the  remainder  when 
the  work  is  certified  as  completed,  payment  by  the  owner  of 
amounts  more  than  the  instalments,  as  provided  for  in  the 
contract,  relieves  the  surety  from  responsibility.*^ 

s»  Ganahl  v.  Weir,   130  Cal.   237,   239,   62   Pac.   Rep.   512. 

*>  Ganahl  v.   W^eir,    130  Cal.    237,    239,   62   Pac.   Rep.   512. 

"  Brag-g  V.  Shain,   49  Cal.   131,   135. 

Affirmed  in  Kiessig  v.  Allspaugh,  91  Cal.  231,  233,  27  Pac.  Rep.  655. 
13  L.  R.  A.  418.  Di-stinsuished  in  Foster  v.  Gaston,  123  Ind.  96,  107,  23 
N.  E.  Rep.  1092.  Followed  in  Backus  v.  Archer,  109  Mich.  666,  668,  67 
N.  W.  Rep.  913;  Simonson  v.  Grant.  36  Minn.  439,  443,  31  N.  W.  Rep.  861; 
Bell  V.  Paul,  35  Neb.  240.  24  5,  52  N.  W.  Rep.  1110;  Gray  v.  School  Dist.. 
35  Neb.  438,  448,  53  N.  W".  Rep.  377;  Board  of  Comm'rs  v.  Branham,  57 
Fed.  Rep.  179,  182. 

See  Glenn  County  v.  Jones,  146  Cal.  518.  522.  80  Pac.  Rep.  695;  Parke 
&  L.  Co.  V.  White  River  Co.,  110  Cal.  658,  665,  43  Pac.  Rep.  202;  Eppin- 
ger  V.  Kendrick,  114  Cal.  620,  626.  46  Pac.  Rep.  613. 

Indiana.     Foster  v.  Gaston,  123  Ind.  96,  107,  23  N.  E.  Rep.  1092. 

Io%va.     Stillman  v.  Wickham.  106  Iowa  597,  599,   76  N.  W.  Rep.  1008. 

Michigan.  Marquette  O.  H.  Co.  v.  Wilson.  109  Mich.  223.  230.  67 
N.  W.  Rep.  123. 

Minne.<4ota.  Pioneer  S.  &  L.  Co.  v.  Freeburg,  59  Minn.  230.  234.  61 
N.  W.  Rep.  25;  Graves  v.  Merrill.  67  Minn.  463,  475,  70  N.  W.  Rep.  562; 
Fidelity  Mut.  L.  Assoc,  v.  Dewey,  83  Minn.  389,  393,  86  N.  W.  Rep.  423. 

Missouri.  Taylor  v.  Jeter,  23  Mo.  244;  Evans  v.  Graden.  125  Mo.  72, 
77,  28  S.  W.  Rep.  439;  Burley  v.  Hitt,  54  Mo,  App.  272,  276. 

Nebraska.     Brennan  v.  Clark.  29  Neb.  385,  399,  45  N.  W.  Rep.  472. 


567  THIRD   PERSONS  —  SURETIES.  §  ti2-l 

Where  the  owner,  under  the  statutory  original  contract, 
is  to  pay  a  portion  of  the  price  in  instalments,  and  the  bal- 
ance of  twenty-five  per  cent  thirty-five  days  after  the  com- 
pletion and  acceptance  of  the  work,  the  surety  upon  the  con- 
tractor's bond,  in  the  sum  of  such  balance,  conditioned  that 
the  contractor  should  deliver  the  building  within  the  con- 
tract time  free  from  all  liens,  demands,  and  claims,  is  liable 
only  for  sums  paid  by  the  owner  above  such  amount  to 
satisfy  valid  liens  on  the  structure,  as  the  surety  is  entitled 
to  the  application  of  this  balance  to  the  payment  of  such 
ivalid  liens,  and  he  is  liable  only  for  enforceable  liens.*^ 

Where  the  contractor  is  under  the  obligation  of  placing  all 
the  materials  on  the  building  site  before  he  is  entitled  to  any 
money  under  the  terms  of  the  contract,  a  payment  made  to 
him,  without  the  consent  of  his  sureties,  before  he  did  so, 
materially  alters  the  obligation  of  such  sureties  on  his  bond, 
conditioned  that  he  should  do  and  perform  all  things  neces- 
sary to  the  erection  of  a  public  school  building,  according 
to  the  plans,  specifications,  and  contract,  and  they  are  com- 
pletely exonerated,  and  not  alone  to  the  limit  of  the  amount 
prematurely  paid.*^ 

§  624.  Same.  Final  instalment.  Where  the  owner  was 
to  retain  one  quarter  of  the  contract  price  as  additional 
security  against  liens  upon  the  building,  and  for  the  benefit 
of  the  sureties,  until  final  settlement  between  the  parties,  in 
addition  to  a  bond  referring  to  a  void  statutory  original  con- 

Nevuda.     Truckee  Lodge  v.  Wood,  14  Nev.  293,  310. 

Oreii^un.  Hand  Mfg-.  Co.  v.  Marks,  36  Oreg.  523,  531,  52  Pac.  Rep.  512, 
53  Id.  1072,  59  Id.  459. 

South  CaroHna.  City  Council  v.  Ormand,  51  S.  C.  121,  226,  28  S.  B. 
Rep.  147. 

Virginia.     Kirsclibaum  v.  Blair.  98  Va.  35,  45,  34  S.  E.  Rep.  895. 

Wa-sliinf^ton.     Peters  v.  Mackay,  20  Wash.  172,  54  Pac.  Rep.  1122. 

AViiscunMiii.  KimbaU  W.  W.  Co.  v.  Baker,  62  Wis.  526,  531,  22  N.  W. 
Rep.  730;  Stephens  v.  Elver,  101  Wis.  392,  398,  77  N.  TV'.  Rep.  737. 

Federal.  Mundy  v.  Stevens,  61  Fed.  Rep.  77,  84;  United  States  v. 
Freel,   92   Fed.   Rep.   299,   303. 

En^'llNli.     Calvert  v.  London  Dock  Co.,  2  Keen  Ch.  638,  639. 

*•  Alcatraz  M.  H.  Assoc,  v.  United  States  F.  &  G.  Co.,  3  Cal.  App.  338, 
85  Pac.  Rep.  156. 

*3  Glenn  County  v.  Jones,  146  Cal.  518,  520,  80  Pac.  Rep.  695,  dis- 
tinguiHbiui;  Hand  M.  Co.  v.  Marks.  36  Oreg.  523,  52  Pac.  Rep.  512. 

See  Kerr's  Cyc.  Civ.  Code,  §§  2480,  2819. 


§  625  mechanics'  liens.  568 

tract  as  its  inducement/*  the  balance  is  a  special  fund  to 
which  the  sureties  may  look  for  their  indemnity,  and  without 
the  consent  of  the  sureties  the  owner  cannot  apply  it  to  pay- 
ing the  contractor  instead  of  lien-holders,  and  after  such 
payment  to  the  contractor,  the  sureties  are  relieved  of 
responsibility  for  any  liens  paid  over  and  above  the  contract 
price. ^^ 

§  625.  Liability  of  sureties.  Damages.  Where  the  origi- 
nal contractors'  bond  provided  that  they  should  complete  the 
building  within  a  specified  time,  and  deliver  it  to  the  owner 
"  free  from  all  liens  and  claims  that  may  be  made  or  filed 
against  the  same  for  or  in  respect  to  any  labor  or  materials 
performed  or  furnished  in  or  for  said  building,"  and  the 
amount  of  liens  was  ascertained  and  paid  into  court  to 
discharge  those  claimed  against  the  owner's  property,  one 
hundred  dollars,  paid  for  attorneys'  fees,  was  allowed  as 
reasonable  damages,  witliin  the  terms  of  the  bond,  approxi- 
mately caused  by  the  breach  of  the  agreement  to  deliver 
the  building  free  from  liens,  the  owner  acting  in  good  faith ; 
and  loss  of  rent,  owing  to  such  default  of  the  contractors,  is 
also  damage  directly  caused  b}'  the  breach  of  the  bond,  and 
is  properly  allowed.*" 

■"  Such  a  statutory  bond  was,  however,  later  held  void,  the  provision 
being  unconstitutional:   See   §  39,   and  §§  281   et  seq.,   ante. 

*'^  Kiessig-  v.  Allspaugh,  91  Cal.  231,  232,  27  Pac.  Rep.  655,  13  L.  R.  A. 
418. 

"Wyoming.  But  where  an  owner  paid  the  contractor  in  full, 
although  the  latter  was  liable  in  damages,  it  was  held,  under  the 
facts  of  the  case,  that  the  owner  was  not  estopped  to  hold  the  suretias 
on  the  contractor's  bond  for  the  amount  of  the  damage:  Halleck  v. 
Bresnahen,  3  Wyo.  73,  2  Pac.  Rep.  537. 

«  Tally  V.  Ganahl  (Cal.  Sup.,  June  19,  1907),  90  Pac.  Rep.  1049.  See 
Tally  V.  Parsons,  131  Cal.  516,  63  Pac.  Rep.  833. 

Ijiability  of  Nureties  on  contractors'  bond  on  failure  of  o^vner  to 
secure  certificate  of  architect,  strictly  as  provided  in  contract:  See 
Tally  V.  Ganahl  (Cal.  Sup.,  June  19,  1907),  90  Pac.  Rep.  1049.  See  Tally 
V.  Parsons,   131  Cal.  516,  63  Pac.  Rep.   833. 

Oklaiionia.  Surety  not  released  for  damages  of  a  certain  amount 
per  day  for  delay,  where  contractor  continues  work  beyond  the  stipu- 
lated time,  with  the  mere  knowledge  of  the  owner,  there  being  no 
agreement  for  extension:  American  S.  Co.  v.  Scott  (Okl.,  Feb.  14,  1907), 
90  Pac.  Rep.  7. 

\Va»)liiugton.  Liability  of  surety  on  su'bcontractor's  bond:  See 
Pacific  B.  Co.  V.  United  States  F.  &  G.  Co.,  33  Wash.  47,  73  Pac.  Rep. 
772. 


569  THIRD   PERSONS SURETIES.  §  625 

Where  a  bond  is  for  the  performance  of  a  contract  to 
deliver  a  building  free  from  all  liens,  claims,  and  demands, 
expenses  incurred  by  the  obligee,  for  services  of  attorneys 
and  other  expenses  in  defending  actions  to  foreclose  liens, 
are  not  chargeable  against  the  sureties,  when  the  owner  was 
to  pay  twenty-five  per  cent  of  the  contract  price  thirty-five 
days  after  the  completion  of  the  structure,  and  before  the 
expiration  thereof  it  was  held  that  he  could  ascertain  the 
amount  of  liens  claimed  thereon  and  satisfy  them  by  appro- 
priating the  money  in  the  owner's  hands  therefor.^'  But,  it 
has  been  seen,  notwithstanding  this  decision,  that  there  is 
no  obligation  on  the  part  of  the  owner  to  determine  at  his 
own  risk  the  validity  of  such  liens. ^^ 

Excess  of  cost  on  abandonment.  Where  a  material-man 
gives  a  bond  to  furnish  certain  materials  to  the  contractor, 
and  his  contract  provides  that  the  contractor  can  pay  in 
advance  of  delivery,  but  the  materials  should  be  acceptable 
to  the  architects  before  payment,  the  contractor  can  recover 
the  difference  between  the  contract  price  and  the  price  paid 
in  open  market  for  the  materials,  to  the  extent  of  the  under- 
taking ;  and  it  is  no  defense  that  the  architects  did  not  accept 
the  materials,  and  that  the  contractor  made  advances  to  the 
material-man  to  enable  him  to  properly  manufacture  the 
materials,  the  obligors  not  being  injuriously  affected,  and 
the   money   paid   by   the   contractor   being   mere    voluntary 

Interest  as  damages  in  action  on  bond  of  judgment  against  one  of 
joint  sureties,  bond  being  joint  and  several:  See  Spokane  &  I.  L.  Co.  v. 
Loy,   21   Wasli.   501,  58  Pac.  Rep.  672. 

Objection  to  items  of  damage  not  in  bill  of  particulars:  See  Spokane 
&  I.  L.  Co.  V.  I^oy,  21  Wash.  r,()l,  58  Pac.  Rep.  672. 

Question  of  surety's  liability,  and  amount  thereof,  for  jury:  See 
Spokane  &  I.  L.  Co.  v.  Loy,  21   Wash.  501.  58  Pac.  Rep.  672. 

"  Alcatraz  M.  &  H.  Assoc,  v.  United  States  F.  &  G.  Co.,  3  Cal.  App. 
338,  85  Pac.  Rep.  156,  158. 

<»  See  §§  535  et  soq.,  ante. 

Oregon.  Pond  conditioned  to  keep  building  free  from  lien.s:  dam- 
ages, owner's  costs  and  expenses  in  defending  foreclosure  suits:  See 
Henry  v.  Hand,   36  Oreg.   492,  59  Pac.   Rep.  330. 

Washington.  Failure  to  defend  suits,  neglect  to  pay  liens,  the 
owner  entitled  to  recover,  in  addition  to  the  amount  of  the  liens  which 
he  had  been  compelled  to  pay,  his  reasonable  expenses,  including 
attorneys'  fees  in  defending  such  suits:  Crowley  v.  United  States  F.  & 
G.  Co.,  29  Wash.  268,  69  Pac.  Rep.  784.  See  Henry  v.  Hand,  36  Oreg 
492,  59  Pac.  Rep.  330. 


§  626  mechanics'  liens.  570 

loans  to  the  material-man,  and  no  recovery  being  sought  on 
account  of  them.*" 

Extras.  Amounts  which  are  paid  by  the  owner,  in  addi- 
tion to  the  contract  cost,  for  correcting  imperfections  in  the 
work  of  a  contractor,  who  abandoned  his  contract,  the  work 
being  completed  by  another  contractor,  the  latter  not  being 
bound  to  know  of  defects  that  were  not  apparent  to  a  com- 
petent and  careful  observer,  or  which  were  not  called  to  his 
attention  at  the  time  ^  he  entered  into  his  contract,  are  for 
extra  work,  and  the  sureties  of  the  first  contractor  are 
chargeable  therefor;  and  the  same  rule  applies  to  defective 
material.^" 

§  626.  Bond  of  contractor  on  public  work.  Where  a  con- 
tractor for  a  public-school  house  gives  a  bond  to  secure  its 
performance,  providing  that  all  persons  furnishing  material 
or  labor  should  be  paid,  and  containing  a  recital  that  it  is  for 
a  valuable  consideration,  and  that  the  bond  shall  inure  to 
the  benefit  of  all  such  persons,  and  guaranteeing  such  pay- 
ment, it  is  independent  of  the  mechanic's-lien  statute.  The 
sureties  are  estopped  from  claiming  that  the  bond  is  not  such 
an  undertaking  as  is  required  by  the  statute,  the  bond  not 
being  prohibited,  nor  against  public  policy  or  good  morals, 
nor  in  contravention  of  any  statute.^^ 

«  Bateman  Bros.  v.  Mapel,  145  Cal.  241,  244.  78  Pac.  Rep.  734. 

Colorado.  Measure  of  damages  in  action  on  bond  as  against  con- 
tractor, the  difference  between  the  amount  paid  to  the  contractor  and 
the  value  of  improvements  placed  upon  the  property  by  him:  See 
Routt  V.  Dils  (Colo.,  May  6,  1907),  90  Pac.  Rep.  67,  68;  O'Driscoll  v. 
Doyle,  31  Colo.  193,  73  Pac.  Rep.  27. 

'^  Long  Beach  School  Dist.  v.  Dodge,  135  Cal.  401,  406,  67  Pac.  Rep. 
499.  See  Long  Beach  School  Dist.  v.  Lutge,  129  Cal.  409,  62  Pac.  Rep. 
36. 

Oklahoma.  Failure  to  complete  contract  within  the  time  specified 
in  contract  is  not  abandonment  of  the  work  for  which  damages,  under 
the  contract,  should  be  allowed:  American  S.  Co.  v.  Scott  (Okl.,  Feb. 
14,  1907),  90  Pac.  Rep.  7. 

51  Union  S.  M.  Works  v.  Dodge,  129  Cal.  390,  394,  62  Pac.  Rep.  41. 
See  People's  L.  Co.  v.  Gillard,  136  Cal.  55,  58,  68  Pac.  Rep.  576. 

Bond  of  contractor  on  state  building:  See  Stats.  1875-76,  p.  427,  §  4, 
HenningN  General  Laws,  p.  1092.  See  also  "Notice,"  §§547  et  seq., 
ante,  and  "Public  Contract."  §§192,  257,  ante. 

rtah.  Mechanic's  lien  cannot  be  filed  on  public  building  without 
express  statutory  permission:  See  Smith  v.  Bowman,  88  Pac.  Rep.  687, 
9  Lu  R.  A.   (N.  S.)  889. 


571  THIRD   PERSONS  —  SURETIES.  §  626 

It  is  not  necessary  for  a  material-man  to  first  sue  a  school 
board  for  materials  sold  and  delivered  to  the  contractor  for  a 
schoolhouse,  but  the  contractor's  sureties  are  directly  liable 
therefor  when  their  undertaking  secures  the  payment  for 
such  materials;  and  the  fact  that  the  board  had  funds  on 
hand,  more  or  less,  at  any  given  time,  applicable  to  payment 
therefor,  is  no  defense.^- 

Bond  by  trustees  of  State  Agricultural  College,  securing-  payment 
for  material  and  labor  used  in  construction  of  public  building,  valid, 
and  enforceable  by  beneficiaries:  Smith  v.  Bowman  (Utah,  Jan.  15, 
1907),   88  Pac.   Rep.   687,   9   L.   R.   A.    (N.   S.)    889. 

Liability  of  suretie.*^:  See  Montgomery  v.  Rief,  15  Utah  495,  50  Pac. 
Rep.   623. 

^Vho  may  resort  to  bond.  Persons  performing  labor  upon  or  fur- 
nishing materials  for  a  public  building,  not  being  entitled  to  a  lien 
upon  the  property,  a  bond,  conditioned  for  the  payment  of  the  penal 
sum  to  all  persons  who  may  become  entitled  to  liens,  cannot  be  ex- 
tended by  implication  beyond  its  terms  to  the  payment  of  claims  for 
such  material  or  labor,  under  the  rule  that  the  liability  of  sureties 
cannot  be  extended  by  implication  beyond  the  terms  of  their  con- 
tract: Smith  V.  Bowman  (Utah,  Jan.  15,  1907),  88  Pac.  Rep.  687,  9 
L.  R.  A.    (N.  S.)    889. 

Washington.  Bond  given  by  contractor  on  public  work:  See 
Crane  Co.  v.  ^tna  I.  Co.,   43  Wash.  516,  86  Pac.   Rep.  849. 

Bond  on  public  contract:  See  Spokane  &  I.  L.  Co.  v.  Loy,  21  Wash. 
501,  58  Pac.  Rep.   672. 

^  People's  L,.  Co.  v.  Gillard,  136  Cal.  55.  62.  68  Pac.  Rep.  576. 


§627 


MECHANICS     LIENS. 


572 


CHAPTER   XXXI. 

WAIVER,  FORFEITURE,    AND    RELEASE    OF    LIEN. 

§  627.  Waiver  of  lien.     General  principle. 

§  628.  Same.     Statutory   provision. 

§  629.  Same.     Knowledge  of  lack  of  authority  of  employer, 

§  630.  Same.     Taking   additional    security. 

§  631.  Same.     Entry  of  judgment. 

§  632.  Forfeiture  by  false  or  excessive  claim  or  notice. 

§  633.  Same.     Illustrations. 

§  634.  Release  of  lien. 

§  635.  Same.     Composition    agreement.     Definition. 

§  636.  Same.     Agreement  to  assign   claims   to   owner. 

§  637.  Same.     Effect  of  composition   agreement. 


§  627.  Waiver  of  lien.^  General  principle.  It  is  not  in- 
tended to  cover  the  general  subject  of  waiver.     It  is  a  gen- 

'  See  "Release,"  §§634  et  seq.,  post;  "Impairment  of  Liens," 
§§284  et  seq.,  ante;  "Alterations  of  Contract,"  §§326  et  seq.,  ante. 

Extinction  of  lien,  generally,  see  Kerr's  Cyc.  Civ.  Code,  §§  2909  et 
seq.,  und  notes.     See  note  41  Am.  Dec.   221. 

Owner  cannot  waive  final  certificate  of  arcliitect,  which  is  a  con- 
dition upon  which  the  completion  payment  should  be  made,  so  far  as 
concerns  sublien-holders,  who  have  served  notice  by  way  of  gar- 
nishment of  the  payment,  under  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1184; 
but  such  payment  is  sufficient,  so  far  as  concerns  claimants  who  fail 
to  give  such  notice:  Valley  L.  Co.  v.  Struck,  146  Cal.  266.  272.  276.  80 
Pac.  Rep.  405,  per  Shaw,  J.  (Beatty,  C.  J.,  and  Angellotti,  J.,  specially 
concuriing,  and  holding  that  Sweeney  v.  Meyer,  124  Cal.  512,  57  Pac. 
Rep.   479,  to  the  contrary,   should  be  overruled). 

Lien  not  waived  by  sureties:  See  Ganahl  v.  Weir,  130  Cal.  237,  239, 
62  Pac.  Rep.  512. 

Colorado.  Waiver  of  lien:  See  Aste  v.  Wilson,  14  Colo.  App.  323, 
59   Pac.  Rep.   846. 

Hawaii.  Claimant  may  rely  upon  personal  liability  of  subcon- 
tractor, and  also  on  lien  against  property:  Hackfeld  v.  Hilo  R.  Co.,  14 
Hawn.   448,   453. 

Ltah.  W^aiver,  under  Rev.  Stats.,  §1391  (Laws  1894,  ch.  xli,  §8): 
See  Sandberg  v.  Victor  G.  &  S.  M.  Co.,  24  Utah  1,  66  Pac.  Rep.  360; 
Elwell  V.  Morrow,  28  Utah  278,  78  Pac.  Rep.  605  (lien  not  waived  by 
failure  to  be  made  a  party). 

AVasiiington.  Absence  of  intention  to  enforce  lien,  no  waiver:  See 
Knudson-Jacob  Co.  v.  Brandt  (Wash.,  Sept.  25,  1906),  87  Pac.  Rep.  43; 
Stringham  v.  Davis,  23  Wash.  568,  63  Pac.  Rep.  230;  Blumauer  v. 
Clock,  24  Wash.  596,  64  Pac.  Rep.  844,  85  Am.  St.  Rep.  966.  But,  in 
the  early  case  of  Heald  v  Hodder,  5  Wash.  677,  32  Pac.  Rep.  728,  it 
was  held  that  lien  claimant  who  performs  labor  upon  the  sole 
credit  of  the  contractors,  and  with  no  intent  to  claim  a  lien,  waives 


573  WAIVER,   FORFEITURE,   AND  RELEASE.  §  627 

eral  principle,  where  no  polic.y  of  the  law  is  violated,  that 
a  party  may,  by  as'reement.  Avaive  -  a  riglit  created  by  the 
statute  for  his  own  benefit,  and  this  applies  to  the  meehanic's- 
lien  statute  also.^ 

his  lien.  The  fact  that  the  judgrnent  of  foreclosure  was  not  ren- 
dered until  after  the  time  limited  for  the  commencement  of  the 
action  had  expired  will  not  defeat  the  lien:  Pacific  Mfg-.  Co.  v.  Brown, 
8  Wash.   347,  36  Pac.  Rep.   273    (under  Gen.   Stats.,  §  1670). 

=  See  Kerr's  Cye.  Civ.  Code,   §§  3268.   3513.   and  notes. 

=  Bowen  V.  Aubrey,  22  Cal.  566.  571  (1858).  See  Levy  v.  Magnolia 
Lodg-e  I.  O.  O.  F.,   110  Cal.  297,  309,  42  Pac.  Rep.   887. 

UiKtin!;iii»4he(l:  Griffith  v.  New  York  Life  Ins.  Co.,  101  Cal.  627,  641, 
36  Pac.  Rep.   113,  4  Am.  St.  Rep.  96. 

See  Kerr's  Cyc.  Civ.  Code,  §   3268,  and  note. 

Under  act  of  1S56,  which  required  liens  to  be  exhibited  within  a 
certain  time,  or  be  deemed  waived,  it  was  held  that  the  act  applied  to 
liens  created  under  the  act,  and  not  to  other  liens:  Whitney  v.  Higgins, 
10  Cal.   547,   551,   70  Am.  Dec.   748. 

Montuna.  See  Miles  v.  Coutts,  20  Mont.  47,  49  Pac.  Rep.  393:  Wag- 
ner V.  St.  Peter's  Hospital,  32  Mont.  206,  79  Pac.  Rep.  1054,  1056; 
Missoula  M.  Co.   v.  O'Donnell,   24   Mont.   65,   60  Pac.   Rep.   594. 

Nevada.  Under  the  act  of  1875,  claimants  were  obliged  to  prove 
up  their  claims  in  an  action  pending,  or  be  held  to  have  waived 
them:  Hunter  v.  Truckee  Lodge,   14  Nev.   24,   29. 

Oregon.  Hughes  v.  Lansing,  34  Oreg.  118,  55  Pac.  Rep.  95,  75  Am. 
St.  Rep.  574.  A  waiver  of  all  claims  for  materials  furnished  the  con- 
tractors is  equivalent  to  the  waiver  of  the  right  or  privilege  of 
claiming  a  lien  therefor;  and  where  an  owner  relies  on  a  waiver  of 
a  subclaitnant,  and  pays  tlie  balance  due  to  the  contractor,  as  against 
the  owner,  such  waiver  is  not  void  as  a  unilateral  agreement:  Id.  And 
in  the  same  case  it  is  held  that  the  right  to  claim  a  mechanic's  lien 
for  building  material  is  not  an  interest  in  land,  which,  under  the 
statute  of  frauds,  the  agent  of  the  material-man  cannot  waive  with- 
out written  authoritj^  from  the  principal;  and  that  where  the  agent 
has  authority  to  represent  the  principal  in  carrying  on  the  business 
of  manufacturing  and  selling  lumber  and  in  filing  mechanics'  liens, 
the  agent's  waiver  of  a  mechanic's  lien  for  lumber  sold  by  him  for 
the  principal  is  binding  upon  the  principal.  Any  contract  or  agree- 
ment inconsistent  with  the  existence  of  lien  is  deemed  such  waiver: 
Gray  v.  Jones,  47  Oreg.  40,  81  Pac.  Rep.  813.  Where  the  legal  owner- 
ship of  the  land  and  the  absolute  ownership  of  the  lien  become 
vested  in  the  same  person,  the  intention  governs  the  merger  in 
equity.  If  this  intention  has  been  expressed,  it  controls.  In  the 
absence  of  such  an  expression,  the  intention  will  be  presumed  from 
what  appear  to  be  the  best  interests  of  the  party,  as  shown  by  the 
circumstances:  Title  G.  &  T.  Co.  v.  W^renn,  35  Oreg.  62,  56  Pac.  Rep. 
271,    275,    76    Am.   St.    Rep.    454. 

See  S§  586  et  seq.,  ante,  and  "Rights  of  Owner,"  §§  510  et  seq.,  ante. 

Utali.  Dwyer  v.  Salt  Lake  City  Mfg.  Co.,  14  Utah  339,  47  Pac.  Rep. 
311  '(stipulation  with  the  vendee  of  the  premises  that  claimant  will 
look  to  some  other  person  for  the  payment  of  his  claims  for  services 
performed  thereon,  and   that  all   the  claims  have  been  paid). 

AVnsiiinglon.  Stringham  v.  Davis,  23  Wash.  568,  63  Pac.  Rep.  230. 
See  Campl'Oll  v.  Vincent.  S  Wash.  650,  36  Pac.  Rep.  685;  Maris  v. 
Clevenger,  29  W'ash.  395,   69  Pac.  Rep.   1089   (loggers'  liens). 


§  628  mechanics'  liens.  574 

§  628.  Same.  Statutory  provision.  Under  the  present 
statute  it  is  not  competent  for  the  owner  and  contractor,  or 
either  of  them,  by  any  term  of  their  contract,  or  otherwise,  to 
waive,  affect,  or  impair  the  claims  and  liens  of  other  persons, 
whether  with  or  without  notice,  except  by  their  written  con- 
sent, and  any  term  of  their  contract  to  that  effect  is  null  and 
void.* 


*  Kerr's  Cye.  Code  Civ.  Proc,  §  1201.  See  Whittier  v.  Wilbur,  48 
Cal.   175.    177. 

See  §§  510  et  seq.,  ante. 

Xon-statutory  original  contract.  As  to  whether  this  rule  is  appli- 
cable to  non-statutory  original  contracts,  see  Sidlinger  v.  Kerkow,  82 
Cal.  42,  22  Pac.  Rep.  932.  And  see  "Impairment  of  Liens,"  §§284 
et  seq.,  ante. 

ruder  statute  of  1858  it  was  held  that  where  a  contractor  ex- 
pressly, by  his  valid  contract,  waived  his  right  to  the  lien,  his  sub- 
contractor could  not  claim  any  such  right,  there  being  nothing  in  the 
statute  prohibiting  such  forfeiture:  Bowen  v.  Aubrey,  22  Cal.  566,  571 
(1858). 

See  Dore  v.   Sellers,   27   Cal.   588.   593. 

Colorado.  It  was  intimated  that  the  contractor  could  not  cut  off 
the  right  of  the  subcontractor  to  a  lien  by  the  original  contract,  at 
least  not  unless  such  was  the  clear  intention:  Jarvis  v.  State  Bank, 
22  Colo.   309,  45  Pac.  Rep.   505,   55  Am.  St.  Rep.   129. 

A  provision  in  a  contract  that  the  original  contractor  would  not 
suffer  any  liens  to  be  pleaded,  set  up,  or  asserted  by  any  subclaimant, 
or  if  so  done,  would  cause  the  same  to  be  satisfied  and  canceled  of 
record,  is  not  a  waiver  of  the  contractor's  lien:  Aste  v.  'Wilson,  14  Colo. 
App.   323,   59  Pac.  Rep.   846. 

See  '■  Sureties,"   §§  605  et  seq.,  ante. 

There  may  be  a  question  whether  or  not  the  contractor  may, 
merely  by  his  contract  with  the  owner,  waiving  his  right  to  a  lien, 
cut  off  the  right  of  a  subcontractor:  Aste  v.  Wilson,  14  Colo.  App.  323, 
59   Pac.   Rep.  846. 

Montana.  Same  ruling  as  text,  independent  of  statute:  Miles  v. 
Coutts,  20  Mont.  47,  49  Pac.  Rep.  393  (the  case  refers  to  the  Pennsyl- 
vania rule  followed  in  Dore  v.  Sellers,  27  Cal,  588,  593;  but  follows 
Whittier  v.  Wilbur,  48  Cal.   175,   177). 

Nevada.  Lien  not  waived,  where  the  contract  provides  that  title 
remain  in  vendor  of  machinery  until  payments  fully  made:  See  Salt 
Lake  H.  Co.  v.  Chainman  M.  &  E.  Co.,  128  Fed.  Rep.  509,  137  Fed.  Rep. 
632. 

Aew  Mexico.  Voluntary  deed  of  trust  to  third  party  for  payment 
of  lien  claim  does  not  bind  claimant,  and  is  waiver  of  lien,  unless 
so  expressly  excepted  by  claimant:  Post  v.  Fleming,  10  N.  M.  476,  62 
Pac.  Rep.   1087,   1089. 

Oresion.  W^aiver  of  lien  by  original  contractor,  by  covenant  in 
contract,  that  he  will  not  allow  "any  lien  or  liens"  to  be  filed,  and 
that  the  premises  shall  be  at  all  times  free  from  any  and  all  liens: 
Gray  v.  Jones.  47  Oreg.  40,  81  Pac.  Rep.  813:  Hand  M.  Co.  v.  Marks. 
36  Oreg.  523,  52  Pac,  Rep.  512,  53  Id.  1072,  59  Id.  549;  Spears  ^v.  Law- 
rence, 10  Wash.  368.  38  Pac.  Rep.   1049,  45  L.  R.  A.  789. 

See    §§  255   et   seq.,   ante. 


575  W.UVER,  FORFEITURE,   AXD  RELEASE.         §§  629,    630 

§  629.  Same.  Knowledge  of  lack  of  authority  of  em- 
ployer. Where  the  credit  is  given  to  the  persou  who  is 
known  by  the  claimant  to  have  no  authority  from  the  owner, 
and  there  is  no  estoppel  present,  it  may  be  considered  a 
Avaiver  of  the  lien.^  A  contractor's  surety  may  be  regarded 
as  waiving  his  lien,  rather  than  as  being  estopped  to  assert 
one,  as  the  elements  of  equitable  estoppel  are  not  present. 

§  630.  Same.  Taking  additional  security.  The  fact  that 
the  claimant  has  another  lien,  or  that  a  note  and  mortgage 
were  to  be  given  for  a  part  of  the  contract  price  under  the 
contract,®  or  that  an  order  was  given  to  the  subclaimant,"  is 
not  thought  to  operate  as  a  waiver  of  the  lien. 

The  acceptance  of  a  note  for  an  antecedent  debt,  generally 
speaking,  does  not  operate  to  discharge  or  extinguish  the 

5  Ayers  V.  Green  Gold  M.  Co.,  116  Gal.  333.  336,  48  Pac.  Rep.  221; 
Jurgenson  v.  DiUer,  114  Gal.  491,  492,  46  Pac.  Rep.  610,  55  Am.  St.  Rep. 
83. 

See  "Agency,"  §§572  et  seq.,  ante. 

AVashiuglon.  As  to  waiver  of  lien  by  giving  credit  solely  to  con- 
tractor, see  Huttig  Mfg.  Co.  v.  Denny  Hotel  Co.,  6  Wash.  122,  126,  32 
Pac.  Rep.   1073. 

«  See  O'Connor  v.  Dingley,  26  Gal.  11,  18;  Skym  v.  Weske  Cons.  Go. 
(Cal.,  Dec.  IS,   1896),  47  Pac.  Rep.   116. 

See,  generally,  waiver  of  lien  by  taking  notes  or  other  securities, 
note  41  Am.  St.  Rep.  761. 

Colorado.  Claimant  may  abandon  his  lien  claim  at  any  time  before 
judgment,  and  proceed  by  attachment,  as  in  any  action  on  contract: 
See  Eagle  G.  M.  Go.  v.  Bryarly,  28  Colo.  262,  65  Pac.  Rep.  52,   53. 

New  Mexico.  Armijo  v.  Mountain  E.  Co.,  11  N.  M.  235,  67  Pac.  Rep. 
726. 

The  lien  is  lost,  where  collateral  security  is  taken,  under  Gomp. 
Laws,  §2235;  but  a  note  is  not  such  collateral  security:  Mountain  Ei. 
Co.  v.  Miles,  9  N.  M.  512,  56  Pac.  Rep.  284. 

Oregron.  Contra:  Trullinger  v.  Kofoed,  7  Greg.  228,  33  Am.  St.  Rep. 
708   (for  whole  contract  price). 

Utah.  Institution  of  an  attacliment  suit  and  levy  of  the  writ  is 
not  a  waiver  of  the  lien:  Salt  Lake  L.  Co.  v.  Ibex  M.  &  S.  Co.,  15  Utah 
440,  49  Pac.  Rep.  768,  62  Am.  St.  Rep.  944. 

'  Adams  v.  Burbank,  103  Cal.  646,  648,  37  Pac.  Rep.  640;  Clancy  v. 
Plover,   107  Gal.   272,   275,  40  Pac.  Rep.  394. 

Under  act  of  IS.'iC,  a  party,  having  secured  a  mechanic's  lien  under 
the  statute,  did  not  forfeit  or  waive  it  by  causing  an  attachment  to 
be  levied  upon  the  property  of  the  debtor  to  secure  the  same  demand: 
Brennan  v.  Swasey,  .16  Cal.  140,  142,  76  Am.  Dec.  507. 

See  SS  602  et  seq.,  ante. 

Nevada.     Skyrme  v.  Occidental  M.  Co.,  8  Nev.  219   (note). 

AVaNliington.  And  the  assignment  of  the  moneys  to  be  paid  (by 
way  of  an  accepted  order),  as  security,  will  not  be  a  waiver  of  his 
lien:  Potvin  v.  Denny  Hotel  Co.,  9  Wash.  316,  37  Pac.  Rep.  320,  38  Pac. 
Rep.  1002. 


§  631  mechanics'  liexs.  576 

debt,  unless  it  is  received  by  express  agreement  as  payment ; 
and  in  such  case  the  right  of  action  on  tlie  debt  is  merely 
suspended  until  the  maturity  of  the  note,  and  suit  may  be 
brought  on  the  original  debt  in  case  of  the  non-payment  of 
the  accepted  note.^ 

Where  a  material-man  gives  a  receipt  expressly  stating 
the  receipt  of  "  payment  by  note,"  it  is  prima  facie,  though 
not  conclusive,  evidence  that  the  note  was  taken  as  payment 
of  the  debt,  and  the  lien  is  waived.^ 

By  giving  orders  on  a  mining  company  for  portions  of  the 
amount  due,  a  miner  is  not  divested  of  his  right  to  his  lien 
for  labor,  where  the  orders  were  not  received  by  the  trans- 
feree in  payment  of  his  demand  against  the  lien  claimant  nor 
paid  nor  accepted  by  the  mining  company,  but  returned  to 
the  lien  claimant  before  the  filing  of  his  claim  of  lien.^" 

§  631.  Same.  Entry  of  judgment.  Under  the  present 
California  code,^^  the  right  of  personal  action  is  preserved 
against  the  one  personally  liable. 

In  an  early  case  it  was  held  that  a  claimant  does  not  lose 
or  waive  his  lien  by  commencing  and  i)rosecuting  to  judg- 
ment an  action  against  the  owners  for  the  indebtedness  to 
secure  which  the  claim  of  lien  was  filed,  the  court  saying, 
" '  There  are  two  controlling  reasons  why  a  mechanic's  lien 
will  not  be  destroyed  by  the  entry  of  a  judgment.  First, 
because  there  is  merger  of  the  claim,  and  not  of  the  security. 
The  first  we  have  already  considered ;  the  second  is  fully  set 
forth  by  the  supreme  court  of  Pennsylvania,  in  the  case  of 
John  Thompson,  substantially  as  follows :  "Whenever  the  law 
works  an  extinguishment,  the  creditor  has  gained  a  higher 
security ;  the  thing  substituted  is  more  beneficial  to  the  cred- 
itor than  the  thing  contracted  for.  Now,  the  debts  of  the 
mechanic  or  material-man  were  originally  simple   contract 

«  Jenne  v.  Burger,  120  Cal.  444,  447,  52  Pac.  Rep.  706.  See  Griffith  v. 
Grog-an,  12  Cal.  317;  Smith  v.  Owens.  21  Cal.  11;  Welch  v.  Allington, 
23  Cal.  322;  Brown  v.  Olmstead,  50  Cal.  162;  Comptoir  D'Escompte  v. 
Dresbach,  78  Cal.  15,  20  Pac.  Rep.  28. 

Xew  Mexico.  Mountain  E.  Co.  V.  Miles,  9  N.  M.  512,  56  Pac.  Rep. 
284   (note). 

'  Jenne  v.  Burger.  120  Cal.  444.  447,  52  Pac.  Rep.   706. 

"  Palmer  v.  Uncas  Min.  Co.,  70  Cal.  614,  615,  11  Pac.  Rep.  666. 

"  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1197. 


577  WAIVER,  FORFEITURE,  AND  RELEASE.  §  632 

debts,  but  for  their  security  the  act  has  created  a  lien  on  the 
building,  so  that  the  security  which  the  creditors  have  in 
relation  to  the  safety  of  the  debts  ranks  with  that  of  a  judg- 
ment or  mortgage.  Therefore  the  acceptance  of  a  bond  and 
warrant  of  attorney,  and  the  entering  of  a  judgment  on  the 
bond,  it  not  a  waiver  or  extinguishment  of  a  mechanic's  lien.' 
The  rule  seems  to  us  not  only  reasonable  and  just,  but  in 
accordance  with  the  analogies  of  the  laAv  in  cases  of  mort- 
gages, pledges,  etc..  and  we  have  been  referred  to  no  author- 
ity to  the  contrary'."  ^- 

The  right  to  a  money  judgment  against  the  person  who 
employetl  C'e  mechanic,  or  who  purchased  the  materials,  on 
the  other  hand,  is  not  lost  nor  waived  by  a  proceeding  to 
enforce  the  lien,  or  in  an  attempt  to  recover  from  the  owner 
the  balance  of  the  contract  price  remaining  in  his  hands." 

§  632.  Forfeiture  by  false  or  excessive  claim  or  notice.^* 
Statutory  provisions.  It  has  already  been  seen  that  the  lien 
is  not  forfeited  by  mere  misstatement  of  the  amount  due,  in 
the  absence  of  fraud. ^^ 

"  Germanla  B.  &  L.  Assoc,  v.  Wagner,  61  Cal.  349,   355,  356. 

Colorado.  The  recovery  of  a  judgment  for  a  debt  does  not  bar  an 
action  to  foreclose  a  Hen  for  the  same  debt:  Marean  v.  Stanley,  5 
Colo.  App.  335  (1889).  "It  would  seem,  upon  principle  and  authority, 
that  notliing  short  of  the  payment  of  the  debt  by  .satisfaction  of  the 
judgment  would  extinguish  the  right  to  enforce  the  lien  against  the 
security":  Id.  337  (Gen.  Stats.,  §2161.  expressly  reserved  all  other 
remedies). 

Utah.  But  see  Garland  v.  Bear  Lake  &  R.  "W.  &  I.  Co.,  9  Utah  350, 
34  Pac.  Rep.  368. 

^^  Bates  V.  Santa  Barbara  County,  90  Cal.  543,  548,  27  Pac.  Rep.  438. 

See  Kerr's  Cyc.  Code  Civ.  Proc.,  §1197.  and  note:  "Cumulative 
Remedies,"  §§638  et  seq.,  post;  "Obligations  of  Owner,"  §§523  et  seq., 
ante. 

Colorado.  Remedy  under  a  contract  not  affected  by  a  lien  or  judg- 
ment thereon:  See  American  Nat.  Bank  v.  Barnard,  15  Colo.  App.  110, 
61  Pac.  Rep.  200. 

Idaho.  Waiver  by  coming  into  court  of  equity  and  asking  that 
claim  be  paid  out  of  the  purchase  price  on  sale  on  judgment  on  prior 
lien:  See  Idaho  G.  M.  Co.  v.  Winchell,  6  Idaho  729,  59  Pac.  Rep.  533,  9C 
Am.    St.    Rep.    290. 

"  Montana.  No  court  of  equity  ought,  in  the  absence  of  an  ex- 
press and  positive  statute,  to  liold  that  a  person  claiming  a  lien  for 
more  than  he  was  entitled,  lost  his  Hen,  unless  it  clearly  appeared 
that  there  was  some  fraud  connected  therewith:  Nolan  v.  Lovelock, 
1  Mont.  224,  229;  Mason  v.  Germaine,  1  Mont.  263,  271;  Black  v.  Appo- 
lonio,   1   Mont.   342. 

•=  See  §§412  et  seq..  ante. 
Mech.  Liens  —  37 


§  632  mechanics'  liens.  578 

Claim  of  lien.  A  recently  enacted  provision  ^*  enunciates 
the  general  law  as  follows :  "  No  mistakes  or  errors  in  the 
statement  of  the  demand,  or  of  the  amount  of  credits  and 
offsets  allowed,  or  of  the  balance  asserted  to  be  due  to  claim- 
ant, nor  in  the  description  of  the  property  against  which  the 
claim  is  filed,  shall  invalidate  the  lien,  unless  the  court  finds 
that  such  mistake  or  error  in  the  statement  of  the  demand, 
credits,  and  offsets,  or  of  the  balance  due,  was  made  with 
the  intent  to  defraud." 

The  statute  ^^  provides  that  "  any  person  who  shall  wilfully 
include  in  his  claim  filed  under  section  eleven  hundred  and 
eighty-seven,  work  or  materials  not  performed  upon  or  fur- 
nished for  the  property  described  in  the  claim,  shall  forfeit 
his  lien." 

•  As  to  notice  to  owner.  The  provision  of  the  code  ^^  is : 
"  Any  person  who  shall  wilfull}'  give  a  false  notice  of  his 
claim  to  the  owner  under  the  provisions  of  section  eleven 
hundred  and  eighty-four,  shall  forfeit  his  lien."  It  is  not 
clear  whether  section  twelve  hundred  and  three  a,  passed  in 
1907,  has  any  application  to  the  notice  to  owner  provided  for 
in  section  eleven  hundred  and  eighty-four.  This  provision 
seems  to  be  applicable  only  to  the  notice  to  the  owner,  dis- 
cussed in  a  preceding  part  of  this  work,  and  not  to  the  claim 
of  lien.^® 

Construction.  The  provisions  of  section  twelve  hundred 
and  two,  above  quoted,  are  penal  in  their  character,  and  must 
be  strictly  construed,^"  and  the  evidence  should  be  clear  and 
convincing  that  the  violation  was  wilful.^^ 

"  Kerr's  Stats,  and  Anidts.  1906-07,  p.  482:  Kerr's  Cyc.  Code  Civ. 
Proc,   §  1203a. 

!•   Kerr's  Cyc.  Code  Civ.  Proc.,  §  1202. 

Hawaii.  Abandonment  of  contract  by  contractor  may  work  for- 
feiture of  his  right  to  lien  without  working  forfeiture  of  that  of 
material-man:   Pacific  H.  Co.  v.  Lincoln,  12  Hawn.   358,   361. 

"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1202. 

"  See  "Notice,"  §§547  et  seq.,  ante;  Schallert-Ganahl  L.  Co.  v. 
Neal,  91  Cal.  362,  366,  27  Pac.  Rep.  743. 

»>  Schallert-Ganahl  L.  Co.  v.  Neal,  91  Cal.  362,'  365,  27  Pac.  Rep.  743; 
Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  106  Cal.  224,   235,  39  Pac.  Rep.  758. 

See  "Construction,"  §§24  et  seq.,  ante;  "Evidence,"  §§822  et  seq., 
post. 

^  Schallert-Ganahl  L.  Co.  v.  Neal,  91  Cal.  362,  365,  27  Pac.  Rep.  743; 
Pacific  Mut.  L.  Ins.  Co.  v.  Fisher.  106  Cal.  224.  235.  39  Pac.  Rep.  758; 
Barber  v.  Reynolds,  44  Cal.  519,  533   (under  §  11  of  the  act  of  1862;  the 


579  WAIVER,  FORFEITURE,  AND  RELEASE.  §  633 

§  633.  Same.  Illustrations.  The  subject  of  forfeiture 
having  already  been  considered  to  some  extent,--  we  shall 
at  this  time  content  ourselves  with  a  few  illustrations  of  the 
general  rule. 

Excessive  material.  Excessive  price.  Where  the  claim 
filed  contains  no  ai'ticles,  except  such  as  are  the  subject  of 
lien,  the  bare  fact  that  a  claimant  has  filed  a  claim  for  too 
much  lumber,  or  set  too  high  a  price  on  it,  would  not,  in  the 
absence  of  fraud,  defeat  his  right  to  foreclose  the  lien  for  so 
much  material  as  was  actually  used  in  the  improvement.^^ 

Non-lienable  materials.  Although  a  claim  of  lien  may  be, 
in  part,  for  articles  not  the  subject  of  lien,  the  court  should 
permit  the  lien  claimant,  by  proof,  to  make  the  necessary 
segregation,  take  out  the  value  of  such  articles,  and  declare 
a  lien  for  the  balance,  unless  there  is  something  to  show  a 

court  saying-,  "There  is  no  such  discrepancy  appearing  here  between 
the  liens  claimed  and  tlie  amounts  adjudged  to  have  been  really  due, 
as  would  suggest  a  doubt  as  to  the  good  faith  of  the  parties  filing 
their  claims  under  the  statute").  And  where  the  record  does  not 
contain  any  evidence  concerning  the  claim,  a  finding  of  the  court  in 
favor  of  the  validity  of  the  notice  will  not  be  set  aside  upon  a  mere 
surmise  that  the  statute  was  wilfully  and  intentionally  violated:  Pa- 
cific ]\Iut.  L.  Ins.  Co.  v.  Fisher,  supra. 

See  "  Evidence,"  §§  822  et  sea-,  post. 

Montana.     INIason  v.  Germaine,  1  -Mont.  271. 

"  Kerr's  Cyc.  Code  Civ.  Proc.,  §§412  et  seq.,  ante. 

^  Harmon  v.  San  Francisco  &  S.  R.  R.  Co.,  86  Cal.  617,  619,  25  Pac. 
Rep.  124.  See  Continental  B.  &  L.  Assoc,  v.  Hutton,  144  Cal.  609,  611, 
78  Pac.   Rep.   21. 

Colorado.     See  Cannon  v.   Williams,   14  Colo.   21,   23  Pac.   Rep.   456. 

New  Mexico.  Springer  L,.  Assoc,  v.  Ford,  168  U.  S.  513,  bk.  42  L.  ed. 
562,  IS  .Sup.  Ct.  Rep.  170. 

Oregfon.  Fitch  v.  Howitt,  32  Oreg.  396.  52  Pac.  Rep.  192.  So  an 
innocent  mistake  in  addition  will  not  vitiate  the  lien:  Harrisburg  L. 
Co.  V.  Washburn,  29  Oreg.  150,  170,  44  Pac.  Rep.  390.  So  where  the 
claim  did  not  allow  sufficient  credit,  it  being  done  in  good  faith: 
Rowland  v.  Harmon,  24  Oreg.  529,  34  Pac.  Rep.  357;  Ainslie  v.  Kohn, 
16  Oreg.  363,  375,  19  Pac.  Rep.  97. 

The  lyireneral  rule,  in  tlie  absence  of  statute,  being  that  where,  in 
tlie  claim  filed,  there  is  an  honest  mistake  in  the  amount  or  price  of 
labor,  or  the  quantity  or  value  of  material  furnished,  about  which 
there  might  be  a  difference  of  opinion,  requiring  evidence  to  ascertain 
the  truth  of  the  facts,  It  will  not  defeat  tlie  lien:  Nicolai  v.  Van  Fri- 
dagh,  23  Oreg.  1^9,  31  Pac.  Rep.  2SS. 

\Vasliiug'ton.  Too  much  material:  Mhittier  v.  Stetson  &  P.  M.  Co., 
6  Wash.  190,  33  Pac.  Rep.  393,  36  Am.  St.  Rep.  149;  Peterman  v.  Mil- 
waukee B.  Co.,  11  Wash.  199,  39  Pac.  Rep.  452.  See  Bolster  v.  Stocks, 
12  Wash.  460,  469,  43  Pac.  Rep.  532,  534,  1099.  And  see  Dexter,  H.  &  Co. 
v.  Spurkman,  2  Wash.  165,  25  Pac.  Rep.  1070;  Dexter,  H.  &  Co.  v. 
Wiley,   2  Wash.  171,   25  Pac.  Rep.  1071. 


§§  634,  635  mechanics'  liens.  580 

wilful  attempt  to  claim  for  iioii-lienable  items  or  to  assert  a 
wilfully  false  claim. -^ 

§  634.  Release  of  lien.  The  general  subject  of  release  will 
not  be  here  considered.-"' 

A  release  obtained  by  fraud,  from  one  who  was  only  inter- 
ested in  a  share  of  the  profits  of  the  contract,  has  no  effect 
upon  another's  interest.-® 

§  635.     Same.      Composition    agreement.     Definition.     A 

composition  agreement  is  a  contract  made  upon  a  sufficient 
consideration,  between  an  insolvent  or  embarrassed  debtor 

-*  Gordon  H.  Co.  v.  San  Francisco  &  S.  R.  R.  Co.,  86  Cal.  620,  622,  25 
Pac.  Rep.  125;  Malone  v.  Big-  Flat  G.  M.  Co.,  76  Cal.  578,  586,  18  Pac. 
Rep.  772;  Snell  v.  Payne,  115  Cal.  218,  222,  46  Pac.  Rep.  1069  ("it  must 
be  so  wilfully  false  as  to  amount  to  a  fraud  ").  See  Continental  B.  &  L. 
Assoc.  V.  Hutton,  144  Cal.  609,  611,  72  Pac.  Rep.  21. 

Nevada.  The  mere  fact  that  charges  have  been  included  in  the 
statement  for  which  the  law  allows  no  lien  will  not  defeat  the  por- 
tion for  which  a  lien  is  given,  when  the  charges  are  separately 
stated:  Maynard  v.  Ivey,  21  Nev.   241,  29  Pac.  Rep.  1090. 

Oregon.  Fitch  v.  Howitt,  32  Oreg.  396,  52  Pac.  Rep.  192;  Harris- 
burg  L.  Co.  V.  Washburn,  29  Oreg.  150,  44  Pac.  Rep.  390;  Allen  v.  El- 
wert,  29  Oreg.  428,  44  Pac.  Rep.  823,  48  Pac.  Rep.  54.  See  Getty  v. 
Ames,  30  Oreg.  573,  48  Pac.  Rep.  515,  60  Am.  St.  Rep.  835;  Title  G.  &  T. 
Co.  V.  Wrenn,  35  Oreg.  62,  56  Pac.  Rep.  271,  76  Am.  St.  Rep.  454.  This 
is  the  rule  if  they  are  susceptible  of  being  segregated:  Cochran  v. 
Baker,  34  Oreg.  555,  56  Pac.  Rep.  641.  But  where  the  items  for  which 
a  lien  is  given  cannot  be  segregated  upon  the  face  of  the  claim  from 
those  for  which  a  lien  is  not  given,  the  lien  is  lost:  Hughes  v.  Lansing, 
34  Oreg.  118,  55  Pac.  Rep.  95,  75  Am.  St.  Rep.  574;  Williams  v.  Toledo 
Coal  Co.,  25  Oreg.  426,  36  Pac.  Rep.  159,  42  Am.  St.  Rep.  799;  Dalles  L. 
Co.  V.  Wasco  Mfg.  Co.,  3  Oreg.  527;  Kezartee  v.  Marks,  15  Oreg.  529, 
16  Pac.  Rep.  407. 

AVashington.  So  where  a  claim  stated  that  certain  material  was 
furnished,  specifying  the  wrong  kind  by  mistake,  tlie  amount  not 
being  increased:  Bolster  v.  Stocks,  13  Wash.  460,  468,  43  Pac.  Rep.  532, 
534,   1099. 

'■'■'  See  Kerr's  Cyc.  Civ.  Code,  §§  1541  et  seq.,  and  notes. 

See   "  Waiver   and  Forfeiture,"   §§   527   et  seq.,  ante. 

Note  for  release  of  sureties'  lien  ^vitliout  consideration:  Blyth  v. 
Robinson,  104  Cal.  239,  242,  37  Pac.  Rep.  904. 

See   "  Sureties,"   §§  605   et  seq.,  ante. 

Release  of  assignor  of  contract:  See  "Assignees,"  §§588  et  seq., 
ante. 

Nevada.  Unsatisfied  judgment  against  agent,  no  release:  Dickson 
V.    Corbett,    11   Nev.    277. 

AVasIiington.  Release  as  to  one  of  several  houses:  See  Powell  v. 
Nolan,  27  W^ash.  318,  67  Pac.  Rep.  712,  720. 

■"  South  Fork  C.  Co.  v.  Gordon,  73  U.S.  (6  Wall.)  561,  bk.  18  L.  ed. 
894. 


581  WAIVER,   FORFEITURE,   AND  RELEASE.  §  636 

and  his  creditors,  or  a  considerable  proportion  of  them, 
whereby  the  latter,  for  the  sake  of  immediate  or  earlier  pay- 
ment, agree  to  accept  a  dividend  less  than  the  Avhole  amount 
of  their  claims,  to  be  distributed  pro  rata  in  discharge  and 
satisfaction  of  the  whole.^^ 

§  636.  Same.  Agreement  to  assign  claims  to  owner.  In 
view  of  the  definition  given  in  the  last  preceding  section,  a 
contract  that  is  not  one  for  the  payment  by  the  debtor  of  any 
sum  or  thing,  and  does  not  purport  to  be,  and  is  not  intended 
as,  a  release  of  the  debtor,  is  not  technically  a  composition 
agreement.  Such  an  agreement  is  one  where  the  owner 
contracts  to  pay  the  money  still  due  to  the  contractor,  first 
paying  all  the  claims  for  labor  in  full,  and  the  remainder 
among  all  the  other  lien  claimants,  in  proportion  to  the  whole 
amount  of  such  claims,  and  the  claimants  agree  to  assign 
their  claims  to  the  owner,  and  if  any  claimant  should  refuse 
to  accept  his  proportion,  to  prove  their  claims  valid  or  return 
the  amount  paid.  Such  an  agreement  does  not  amount  to  an 
accord,  but  constitutes  a  valid  and  binding  agreement. 
"Where  the  lien  claimants  thus  mutually  agree  to  forego  their 
right  to  pursue  the  usual  method  of  enforcing  their  demands 
in  consideration  of  being  paid  at  a  given  time,  the  engage- 
ment of  each  is  a  sufficient  consideration  for  the  engagement 
of  the  others  to  do  the  same,  and  the  owner's  acceptance  of 
the  contract,  and  his  payment  thereunder,  are  a  sufficient 
consideration  to  support  the  agreement  of  the  claimants.-- 

Pro  rata  amount  left  blank.  The  fact  that,  in  such  an 
agreement,  blanks  are  left  therein,  relative  to  tlie  pro  rata 
to  be  paid  the  lien  claimants,  does  not  make  the  agreement 
incomplete,  as  the  contract  affords  the  means  of  supplying 
the  blanks  with  certainty,  namely,  the  amount  due  from  the 
owner  to  be  applied  ratably  among  demands  of  record,  and 
especially  where  the  amount  was  known  to  the  parties  at  the 
time  of  making  the  agreement.  IMoreover,  if  such  agreement 
simply  is  to  divide  the  sum  due  from  the  owner  of  the  build- 
er Wilson  V.  Samuels,  100  Cal.  514,  518.  35  Pac.  Rep.  148.  See  S  67  of 
the  Act  to  EstablLsh  a  Uniform  System  of  Bankruptcy  throughout 
the  United  States,  approved  .Tuly  1.  1898,  1  Fed.  htats.  Ann.  688. 
**  Wilson  V.  Samuels,  100  Cal.  514,  518,  35  Pac.  Rep.  148. 


§  637  MECHAXICS'    LIENS.  582 

ing  among  the  subelaimants,  without  other  or  more  accurate 
specification,  it  would  be  ascertainable  and  valid,  and  would 
afford  a  criterion  by  which  to  ascertain  the  amount  due.  and 
its  disposition. -'^ 

Such  agreement  does  not  constitute  an  accord  between  the 
parties,  but  constitutes  a  valid  and  binding  agreement, 
authorizing  the  owner  to  disburse  the  fund  in  hand;  and  to 
permit  a  claimant  to  repudiate  such  an  executed  agreement 
as  to  all  the  other  parties,  and  recover  from  the  owner  the 
entire  sum  due  him  from  the  contractor,  would  be  to  permit 
him  to  take  advantage  of  his  own  wrong.^" 

Where  the  owner  does  not  seek  any  compromise  or  compo- 
sition of  the  claims  for  which  his  property  is  liable,  and  is  at 
all  times  willing  to  pay  all  that  he  owes  the  contractor,  in  the 
mode  provided  by  law,  it  is  not  for  his  benefit  that  such 
agreement  is  made,  but  for  that  of  the  creditors  of  the  con- 
tractor.^^ 

§  637.  Same.  Effect  of  composition  agreement.  A  com- 
position agreement,  executed  by  claimant  and  other  creditors 
of  the  contractor,  agreeing  to  release  the  contractor  and 
owner  upon  the  terms  specified,  operates  to  extinguish  the 
liability  which  the  lien  was  filed  to  secure,  and  the  considera- 
tion therefor  consists  of  the  mutual  promises  of  the  signing 
creditors  to  take  something  less  than  or  different  from  what 
they  were  entitled  to  under  their  previous  contracts. ^- 

AU  of  the  creditors  need  not  sign  such  an  agreement,  to 
make  it  valid,  in  the  absence  of  a  condition  in  the  contract 
to  that  effect ;  but  it  is  sufficient  if  two  or  more  sign  the  same, 
the  signature  and  promise  of  each  being  sufficient  considera- 
tion for  the  agreement  of  the  others.^^ 

»  WMlson  V.  Samuels,   100  Cal.  514,   518,  35  Pac.  Rep.   148. 

20  Wilson  V.  Samuels,  100  Cal.  514,  518,  35  Pac.  Rep.  148;  Schroeder 
V.  Pissis,  128  Cal.  209,  213,  60  Pac.  Rep.  758.     See  §  637,  post. 

31  Wilson  V.  Samuels.  100  Cal.  514,  519,  35  Pac.  Rep.  14& 

^  Schroeder  v.   Pissis,   128  Cal.   209,   213,   60  Pac.  Rep-  758. 

^  Schroeder  v.   Pissis,  supra.      See   §  636,   ante. 

Modifying  agreeiiient  of  eompo.sition  by  oral  qiialiftention  and  con- 
ditions to  the  written  "contract:  See  Schroeder  v.  Pissis,  128  Cal.  209, 
2i3.  60  Pac.  Rep.  758. 

Oregon.  Release  by  contractor  of  all  claims  ag-ainst  owner  for 
breach  of  contract:  Hand  M.  Co.  v.  Marks,  36  Oreg.  523,  59  Pac.  Rep. 
549,  552. 


PAET  II. 
PLEADING  AND  PROCEDUEE. 


CHAPTER    XXXII. 

REMEDIES. 

§  638.  Cumulative  remedies.     Personal  action. 

§  639.  Same.     Election,  when  several  suits  commenced. 

§  640.  Same.     Nature  of  action  to  foreclose  lien. 

§  ()41.  Same.     Actions  by  original  contractor. 

§  642.  Same.     Actions   by  subclaimants. 

§  643.  Same.     Actions  by  owner's  laborers  and  material-men. 

§  644.  Same.     Actions  by  owner. 

§  645.  Provisional  remedies.     Statutory  provision. 

§  646.  Same.     Attachment. 

§  647.  Same.     Materials  exempt  from  attachment. 

§  648.  Same.     Injunction. 

§  638.  Cumulative  remedies.  Personal  action.  Gener- 
ally speaking,  an  action  in  personam  lies  by  the  lien  claimant 
against  the  person  liable,  under  the  general  principles  of 
contract.^ 

1  Central  L.  &  M.  Co.  v.  Center,  107  Cal.  193,  197,  40  Pac.  Rep.  334; 
Bates  v.  Santa  Barbara  County,  90  Cal.  543,  547,  27  Pac.  Rep.  438; 
McMenomy  v.  White,  115  Cal.  339,  343,  47  Pac.  Rep.  109;  Kerr's  Cyc. 
Code  Civ.  Proc,  §  1197,  and  note.  See  Marchant  v.  Hayes,  117  Cal.  669, 
671,   49  Pac.  Rep.  840,  s.  c.   120  Cal.  137,  139,  52  Pac.  Rep.  154. 

See  "Liability  of  Owner,"  §§523  et  seq.,  ante;  "Liability  of  Con- 
tractor," §§64  et  seq.,  ante;  "General  Rights  of  Original  Contractor," 
§§  61  et  seq.,  ante. 

Cumulative  remedie.s:  See  Bianchi  v.  Hughes,  124  Cal.  24,  56  Pac. 
Rep.   610. 

Montana.     O'Rourke  v.  Butte  Lodge,  19  Mont.  541,  48  Pac.  Rep.  1106. 

!>iplittiug  denuindM:  See  Boucher  v.  Powers,  29  Mont.  342,  74  Pac. 
Rep.  942. 

Oregon.     At  law:   Willamette  L.   Co.   v.   McLeod,    27   Oreg.    272. 

Utah.  Remedial  provisions  liberally  construed:  Elwell  v.  Morrow, 
28  Utah   27S,  78  Pac.  Plep.  605,  607. 

\Vn.shinston.  Potvin  v.  Wickersham,  15  Wash.  646,  647,  47  Pac. 
Rep.  25.  See  Peterman  v.  Milwaukee  B.  Co.,  11  Wash.  199,  200,  39 
Pac.  Rep.  452;  Fairhaven  L.  Co.  v.  Jordan,  5  Wash.  729,  736,  32  Pac. 
Rep.   729. 

(583) 


I 


§  639  mechanics'  liens.  584 

Express  contract.  Common  counts.  A  valid  contract  be- 
tween the  owner  and  the  contractor  may  be  sued  on  specially, 
without  foreclosing  the  lien,  or  the  common  counts  in  as- 
sumpsit may  be  used,  in  accordance  with  the  general  rules 
applicable  to  such  counts.- 

Where  the  remedies  given  are  cumulative,  both  may  be 
pursued  at  the  same  time.'  But  there  can  be  but  one  sat- 
isfaction of  the  claim,  with  costs  and  counsel  fees,  when 
allowed.* 

§  639.  Same.  Election,  when  several  suits  commenced. 
In  case  of  an  attempt  to  pursue  cumulative  remedies  in  sepa- 
rate actions,  such  as  an  action  to  foreclose  the  lien  upon  the 
property,  and  a  suit  upon  the  account  with  an  attachment, 
plaintiff  may  be  put  to  his  election.^ 

2  Castag-nino  v.  Balletta.  82  Cal.  250,  256,  23  Pac.  Rep.  127. 
See  "Pleadings,"  §S  670  et  seq.,  post. 

Action  on  qnantiiiu  meruit,  based  upon  request:  De  Prosse  v.  Royal 
E.  D.  Co.,  135  Cal.  408,  410,  67  Pac.  Rep.  502. 

3  Kerr's  Cyc.  Code  Civ.  Proc,  §§  1197,  1203;  Brennan  v.  Swasey,  16 
Cal.  140,  142,  76  Am.  Dec.  507;  Bates  v.  Santa  Barbara  County,  90  Cal. 
543,  548,  27  Pac.  Rep.  438. 

See  "Waiver  of  Lien,"  §§  627  et  seq.,  ante. 

Colorado.     Marean  v.  Stanley,  5  Colo.  App.  335,  38  Pac.  Rep.  395. 

Ha-n-aii.  Election  of  remedies:  See  Bierce  v.  Hutchins,  16  Hawn. 
418,   717. 

Montana.  O'Rourke  v.  Butte  Lodge,  19  Mont.  541,  48  Pac.  Rep. 
1106;  American  S.  &  L.  Assoc,  v.  Burghardt,  17  Mont.  545,  43  Pac.  Rep. 
923. 

Personal  judgment  allowed  in  action  to  foreclose  lien:  Western  P. 
Co.  V.  Fried,  33  Mont.  7,  81  Pac.  Rep.  394,  114  Am.  St.  Rep.  799.  See 
Goodrich  L.  Co.  v.  Davie,  13  Mont.  76,  32  Pac.  Rep.  282;  Aldritt  v. 
Panton,  17  Mont.  187,  42  Pac.  Rep.  767;  Riale  v.  Roush,  1  Mont.  474. 

Utah.  But  see  Garland  v.  Irrigation  Co.,  9  Utah  350,  34  Pac.  Rep. 
368. 

AVashington.  Potvin  v.  Wickersham,  15  Wash.  646,  647,  47  Pac. 
Rep.  25. 

*  Kerr's  Cyc.  Code  Civ.  Proc,  §  1203. 

As  to  bond,  see  Malone  v.  Big  Flat  G.  M.  Co.,  76  Cal.  578,  586,  18 
Pac.  Rep.  772. 

Colorado.  Marean  v.  Stanley,  5  Colo.  App.  335,  38  Pac.  Rep.  395; 
but  compare  Orman  v.  Ryan,  25  Colo.  383,  55  Pac.  Rep.  168. 

'  Brennan  v.  Swasey,  16  Cal.  140,  142,  76  Am.  Dec.  507. 

Attachment  for  money  due  is  not  waiver  of  lien,  under  mechanic's- 
lien  law:  Brennan  v.  Swasey,  supra:  Bates  v.  Santa  Barbara  County, 
90  Cal.  543,  548,  27  Pac.  Rep.  438.  See  Roberts  v.  Wilcoxson,  36  Ark. 
363;  Salt  Lake  L.  Co.  v.  Ibex  M.  &  S.  Co.,  15  Utah  440,  444,  49  Pac.  Rep. 
768. 

See  notes  79  Am.  Dec.  277;  35  Am.  St.  Rep.  553. 


585  REMEDIES.  §  640 

§  640.  Same.  Nature  of  action  to  foreclose  lien.  The 
action  to  foreclose  the  lien  is  a  suit  in  equity,"  and  in  many 

Hawaii.  Principles  of  election  of  remedy:  See  Bierce  v.  Hutchins, 
16   Hawn.   717.   TIS. 

Nevada.  Personal  judgment  against  agent  of  owner;  subsequent 
foreclosure  of  lien  against  owner  allowed:  Dickson  v.  Corbett,  11  Nev. 
277. 

«  Brock  V.  Bruce,  5  Cal.  279,  280;  Curnow  v.  Happy  Valley  G.  &  H. 
Min.  Co.,  68  Cal.  262,  264,  268,  9  Pac.  Rep.  149.  See  Worden  v.  Ham- 
mond, 37  Cal.  61,  65,  and  Barber  v.  Reynolds,  33  Cal.  497,  502. 

Action  to  foreolo.se  lieu  against  property  and  fund,  equitable  suits: 
Weldon  v.  Superior  Court,  138  Cal.  427,  429,  71  Pac.  Rep.  502.  See 
Dunlop  V.  Kennedy  (Cal.,  Aug.  31,  1893),  34  Pac.  Rep.  92,  95  (rehear- 
ing granted). 

Suit  to  foreclose  lien  for  labor  on  threshing-machine,  suit  in  equity: 
Clark  V.  Brown,   141  Cal.  93,  95,   74  Pac.  Rep.   548. 

Actions  to  enforce  meclianics'  liens:  See  note  11  L.  R.  A.  743. 

Alaska.  Russell  v.  Hayner,  2  Alas.  703  (Dig.),  130  Fed.  Rep.  90,  64 
C.  C.  A.  424. 

Colorado.  Joralmon  v.  McPhee,  31  Colo.  26,  71  Pac.  Rep.  419,  422; 
San  Juan  etc.  Co.  v.  Finch,  6  Colo.  214  (prior  to  code);  Williams  v. 
Uncompahgre  C.  Co.,  13  Colo.  469,  22  Pac.  Rep.  806;  Cary  Hardware 
Co.  V.  McCarty,  10  Colo.  App.  200,  208,  50  Pac.  Rep.  744;  Marean  v. 
Stanley,  5  Colo.  App.  335;  Bradbury  v.  Butler,  1  Colo.  App.  430,  29  Pac. 
Rep.  463. 

Idaho.  Idaho  &  O.  L.  Imp.  Co.  v.  Bradbury,  132  U.  S.  509,  bk.  33 
L.  ed.  433,  10  Sup.  Ct.  Rep.  177.  See  Robertson  v.  Moore,  10  Idaho  115, 
77  Pac.  Rep.  218;  Christensen  v.  Hollingsworth,  6  Idaho  87,  53  Pac. 
Rep.   211;  Sandstrom  v.  Smith    (Idaho,  June  20,   1906),   86  Pac.  Rep.  416. 

Montana.  Cook  v.  Gallatin  R.  Co.,  28  Mont.  340,  72  Pac.  Rep.  678; 
Marsh  v.  Morgan,  18  Mont.  19,  44  Pac.  Rep.  85;  Simonton  v.  Kelley,  1 
Mont.  483;  Riale  v.  Roush,  1  Mont.  474;  Montana  O.  P.  Co.  v.  Boston 
&  M.  C.  &  S.  Min.  Co.,  27  Mont.  288,  70  Pac.  Rep.  1114;  Gilchrist  v.  Helena 
H.  S.  Co.  (Mont.),  58  Fed.  Rep.  708;  O'Rourke  v.  Butte  Lodge,  19  Mont. 
541,  48  Pac.  Rep.  1106.  See  Marsh  v.  Morgan,  18  Mont.  19,  44  Pac.  Rep. 
85;  Alvord  v.  Hendrie,  2  Mont.  115;  Mason  v.  Germaine,  1  Mont.  263, 
267;  Mochon  v.  Sullivan,  1  Mont.  470,  473;  Davis  v.  Alvord,  94  U.  S. 
545.  bk.  24  L.  ed.  2S3. 

Fact  tliat  pergonal  judgment  is  rendered  for  the  amount  due,  with 
directions  that  if  the  same  should  not  be  satisfied  out  of  other  prop- 
erty of  the  debtor,  the  property  upon  which  the  lien  is  adjudged  to 
exist  should  be  sold  and  the  proceeds  applied  to  the  payment,  does 
not  change  the  character  of  the  suit  from  one  of  equitable  cognizance 
and  convert  it  into  an  action  at  law:  Davis  v.  Alvord,  94  U.  S.  545,  bk. 
24  L.   ed.   283. 

New  Mexico.  Ford  v.  Springer  L.  Assoc,  8  N.  M.  37,  41  Pac.  Rep. 
541:  Hobbs  V.  Spiegelberg,  13  N.  M.  363,  5  Pac.  Rep.  529;  Straus  v. 
Finane,  3  N.  M.  398,  5  Pac.  Rep.  729;  Finane  v.  Hotel  &  Imp.  Co.,  3 
N.  M.  411,  5  Pac.  Rep.  725;  Rupe  v.  New  Mexico  L.  Assoc,  3  N.  M.  397. 
555,  9  Pac.  Rep.  301;  Houghton  v.  Hotel  Co.,  3  N.  M.  419,  5  Pac.  Rep. 
729.     See  Post  v.  Miles,  7  N.  M.  317,  34  Pac.  Rep.  586. 

Oregon.  Allen  v.  Elwert,  29  Oreg.  428,  44  Pac.  Rep.  823,  48  Id.  54; 
Ming  Yue  v.  Coos  Bay  R.  Co.,  24  Oreg.  392. 

rtah.  Mammoth  M.  Co.  v.  Salt  Lake  M.  Co.,  151  LT.  S.  447,  450,  bk. 
38  L.  ed.   229,  14  Sup.  Ct.  Rep.  384. 

Washington.     Powell   v.  Nolan,   27   Wash.   318,   67  Pac   Rep.   712,   718. 


§  641  mechanics'  liens.  586 

particulars  it  resembles  an  action  to  foreclose  a  mortgage/ 
It  is  also  in  the  nature  of  a  proceeding  in  rem.*  But  in  this 
form  of  action  questions  of  title  cannot  be  adjudicated." 

§  641.  Same.  Actions  by  original  contractor.  The  ori- 
ginal contractor  has  an  action  in  personam  against  his  em- 
ployer for  the  contract  price  on  a  valid  original  contract 
performed  by  the  contractor.  It  is  only  when  the  plan  of 
the  owner  has  been  substantially  embodied  in  the  work  that 
the  court  can  have  an  occasion  to  estimate  the  deficiency. 
The  authorities  are  very  clear  upon  this  point.  There 
is  a  variety  of  cases  to  which  the  so-called  modern  equitable 

E^quitnble  lu  its  nature:  Harrington  v.  Miller,  4  Wash.  808,  811,  31 
Pac.  Rep.  325  (under  §1677);  Wheeler  v.  Ralph,  4  Wash.  617,  630,  30 
Pac.  Rep.  709;  Fox  v.  Nachtsheim,  3  Wash.  684,  29  Pac.  Rep.  140;  In- 
stallment B.  &  L.  Co.  V.  Wentworth,  1  Wash.  467,  469,  25  Pac.  Rep.  298. 
See  Washington  I.  W.  Co.  v.  Jensen,  3  Wash.  584,  28  Pac.  Rep.  1019. 
And  it  cannot  be  converted  into  a  suit  at  law  by  setting  up  a  legal 
defense  by  way  of  counterclaim:  Kilroy  v.  Mitchell,  2  Wash.  407,  26 
Pac.  Rep.  865;  Installment  B.  &  L.  Co.  v.  Wentworth,  1  Wash.  467,  25 
Pac.  Rep.  298. 

Wyoming.  The  district  court  had  "  full  jurisdiction,  upon  its  law 
side,  to  administer  the  mechanic's  lien":  Fein  v.  Davis,  2  Wyo.  118, 
122. 

'  Whitney  v.  Higgins,  10  Cal.  547,  551,  70  Am.  Dec.  748.  See  Worden 
V.  Hammond,  37  Cal.  61,  65. 

See  "  General  Nature  of  Lien,"  §  9,  ante. 

New  Mexico.     Hobbs  v.  Spiegelberg,  3  N.  M.  364,  5  Pac.  Rep.  529. 

Washington.  Harrington  v.  Miller,  4  W'ash.  808,  811,  31  Pac.  Rep. 
325.  See  Washington  I.  W.  Co.  v.  Jensen,  3  Wash.  584,  28  Pac.  Rep. 
1019;  Fox  v.  Nachtsheim,  3  Wash.  684,  29  Pac.  Rep.  140. 

s  Van  Winkle  v.  Stow,  23  Cal.  457;  Booth  v.  Pendola,  88  Cal.  36,  44, 
23  Pac.  Rep.   200,   24  Id.  714,   25  Id.   1101. 

See  "  Nature  of  Lien,"  §  9,  ante. 

Colorado.  Marean  v.  Stanley,  5  Colo.  App.  335.  But  is  it  not,  as  to 
the  principal  basis  of  the  action,  such  a  proceeding:  Davis  v.  Mouat  L. 
Co.,  2  Colo.  App.  381,  31  Pac.  Rep.  187. 

Montana.  O'Rourke  v.  Butte  Lodge,  19  Mont.  544,  48  Pac.  Rep.  1106; 
Mochon  V.  Sullivan,  1  Mont.  470,  472. 

Nevada.  Under  the  act  of  1875,  it  was  a  proceeding  to  enforce  not 
only  the  lien  of  the  plaintiff,  but  also  all  the  recorded  liens:  Hunter 
V.  Truckee  Lodge,  14  Nev.  24,  29. 

Oregon.  Under  Hill's  Ann.  Laws,  §3677,  "a  suit  to  enforce  a  par- 
ticula.-  mechanic's  lien  is,  in  effect,  a  proceeding  to  enforce  the  liens 
of  all  lien  claimants,  parties  to  the  record":  Title  G.  &  T.  Co.  v. 
Wrern,  35  Oreg.  62,  56  Pac.  Rep.  271,  76  Am.  St.  Rep.  454. 

AVasliington.  Douthitt  V.  MacCulsky,  11  Wash.  601,  606,  40  Pac. 
Rep.  186;  Chevret  v.  Mechanics'  M.  &  L.  Co.,  4  Wash.  721,  31  Pac.  Rep. 
24. 

B  Worden  v.  Hammond,  37  Cal.  61,  65;  Williams  v.  Mountaineer  G.  M. 
Co.,  102  Cal.  134,  143,  34  Pac.  Rep.  702,  36  Pac.  Rep.  388. 


587  REMEDIES.  §  64:1 

rule  has  iDeen  applied.  These  have  already  been  considered, 
and  what  was  elsewhere  said  will  not  be  repeated.^" 

Breach  of  valid  contract.  Where  the  original  contract 
is  valid,  the  original  contractor  has  also  an  action  for  dam- 
ages for  breach  of  contract  by  the  owner,  and  may  recover 
the  profits  which  he  would  have  made  had  he  been  allowed 
to  complete  the  work.^^ 

Action  upon  implied  contract.  Upon  a  rescission  by 
reason  of  a  breach  justifying  the  contractor  in  abandoning 
the  contract/-  or  upon  prevention  of  performance,  he  may 
have  an  action  in  personam  on  the  implied  contract,  for  the 
value  of  the  work  done  and  materials  furnished. ^^  Upon 
breach  of  contract  by  the  owner,  preventing  performance, 
the  contractor  may  treat  contract  as  terminated,  and  recover 
profits,  and  the  original  contract  is  continued  in  force  for 
that  purpose.^*  And  he  may  foreclose  a  lien  upon  such  im- 
plied contract.^^  And  the  contractor,  on  his  failure  to  carry 
out  the  exact  terms  of  the  valid  contract,  under  certain  cir- 

"  See  "Performance,"  §§334  et  seq.,  ante;  Perry  v.  Quackenbush, 
105  Cal.  299,  307,  38  Pac.  Rep.  740;  Marchant  v.  Hayes,  117  Cal.  669,  49 
Pac.  Rep.  840;  Harlan  v.  Stufflebeem,  87  Cal.  508,  512,  25  Pac.  Rep.  686. 

See  "Liability  of  Owner,"  §§523  et  seq.,  ante;  "Complaint,"  §§659 
et  seq.,   post. 

AViiMliing-ton.  The  contractor  who  deliberately  furnishes  inferior 
materials  or  work  cannot  recover  on  the  contract:  Schmidt  v.  City  of 
Nortli  Yakima,  12  Wasli.  121,  40  Pac.  Rep.  790. 

11  Cox  V.  McLaughlin,  54  Cal.  605,  606.  So  of  breach  of  contract  by 
a  county:  McPherson  v.  San  Joaquin  County  (Cal.,  March  24,  1S99), 
56  Pac.  Rep.  802.  And  also  expenditures  made  in  preparing  to  do  the 
work:  O'Connell  v.  Main  etc.  Hotel  Co.,  90  Cal.  515,  27  Pac.  Rep.  373. 
As  to  damages  arising  from  subcontracts,   see  same  case. 

Coloratlo.  See  Florence  O.  &  R.  Co.  v.  Reeves,  13  Colo.  App.  95,  56 
Pac.  Rep.  674   (for  delay  and  expenses). 

'-  See  "Abandonment,"  §§358.et  seq.,  ante,  and  "Performance," 
§§  334  et  seq.,  ante. 

"  Porter  v.  Arrowhead  R.  Co.,  100  Cal.  500,  502,  35  Pac.  Rep.  146; 
Golden  Gate  L.  Co.  v.  Sahrbacher,  105  Cal.  114,  116,  38  Pac.  Rep.  635; 
Cox  V.  McLaughlin,  54  Cal.  605,  606;  Adams  v.  Burbank,  103  Cal.  646, 
649,  37  Pac.  Rep.  640;  Cox  v.  Western  Pac.  R.  Co.,  47  Cal.  87,  89. 

See  "  Performance,"  §§  334  et  seq.,  ante. 

Colorndo.     McGonigle  v.  Klein,  6  Colo.  App.  306,  40  Pac.  Rep.  465. 

Actiou  on  quantum  meruit:  See  Cox  v.  McLaughlin,  76  Cal.  60,  64,  18 
Pac.  Rep.  100,  9  Am.  St.  Rep.  164. 

"  McConnell  v.  Corona  City  W.  Co.,  149  Cal.  60,  64,  85  Pac.  Rep.  929. 

'=  Golden  Gate  L.  Co.  v.  Sahrbacher,  105  Cal.  114,  116,  38  Pac.  Rep. 
635.  See  Porter  v.  Arrowhead  R.  Co.,  100  Cal.  500,  502,  35  Pac.  Rep. 
146;  Adams  v.  Burbank,  103  Cal.  646,  650,  37  Pac,  Rep.  640;  Neihaus  v 
Morgan   (Cal.,  June  2,  1896),  45  Pac.  Rep.  255. 


§  612  mechanics'  liens.  588 

cumstances  elsewhere  stated,  may  recover  on  the  implied 
contract,  less  damages  sustained  by  the  owner.^*^ 

Where  the  statutory  original  contract  is  void,  the  con- 
tractor has  no  action  on  the  express  contract,  for  dam- 
ages or  otherwise,  against  the  owner ;  ^^  but  he  has  an 
action  on  the  implied  contract,  in  personam,  against  the 
owner,  for  the  reasonable  value  of  the  labor  performed  and 
materials  furnished;  the  owner  deriving  a  benefit  thereby.^* 
Under  such  void  contract,  however,  he  has  no  action  to 
foreclose  a  lien  on  the  implied  contract.^'' 

Against  subclaimants.  The  contractor  also  has  an  action 
against  subclaimants  for  breach  of  the  contract  betweea 
himself  and  such  subclaimants.-" 

§  642.  Same.  Actions  by  subclaimants.  Subclaimants 
have  an  action  in  personam  against  the  contractor,-^  subcon- 
tractor,-- or  person  with  whom  they  contracted,  on  the  con- 
tract, or  for  breach  of  it ;  -^  and,  under  the  general  prin- 
ts Perry  v.  Quackenbush,  105  Cal.  299,  307,  38  Pac.  Rep.  740. 

See  "  Performance,"  §§  334  et  seq.,  ante. 

"  Palmer  v.  White,  70  Cal.  220,  11  Pac.  Rep.  647.  See  Rebman  v. 
San  Gabriel  V.  L.  &  W.  Co.,  95  Cal.  390,  394,  30  Pac.  Rep.  564. 

"  Rebman  v.  San  Gabriel  V.  L.  &  W.  Co.,  95  Cal.  390,  394,  30  Pac. 
Rep.  564;  Spinney  v.  Griffith,  98  Cal.  149,  154,  32  Pac.  Rep.  974;  Hol- 
land V.  Wilson,  76  Cal.  434,  18  Pac.  Rep.  412;  Covell  v.  Washburn,  91 
Cal.  560,  27  Pac.  Rep.  859;  Morris  v.  Wilson,  97  Cal.  644,  647,  32  Pac. 
Rep.  801;  Kuhlman  v.  Burns,  117  Cal.  469,  49  Pac.  Rep.  585;  Marchant 
V.  Hayes,  117  Cal.  669,  672,  49  Pac.  Rep.  840.  See  Kiessig  v.  Allspaugh, 
91  Cal.  234,   27  Pac.  Rep.  655.  13  L.  R.  A.  418. 

See  §§  523  et  seq.,  and  "  Effect  of  Void  Contract,"  §§  319  et  seq.,  ante. 

"  Spinney  v.  Griffith,  98  Cal.  149,  154,  32  Pac.  Rep.  974.  But  see 
Cummings  v.  Ross,  90  Cal.  68,  71,  27  Pac.  Rep.  62,  where  an  action 
upon  an  implied  contract  was  allowed  in  the  case  of  a  non-statutory 
original  contract,  void  by  reason  of  fraud. 

-"  See  §§  61  et  seq.,  ante. 

21  Utah.     See  Garland  v.  McMartin,  8  Utah  150,  30  Pac.  Rep.  365. 

Wa.>»liington.  Potvin  v.  W*ickersham,  15  Wash.  646,  47  Pac.  Rep.  25; 
and  where  copartners  enter  into  the  original  contract,  the  subsequent 
withdrawal  of  one  of  the  partners  does  not  relieve  the  contractor 
from  liability:  Stetson  &  P.  M.  Co.  v.  McDonald,  5  Wash.  496,  32  Pac. 
Rep.  108. 

^  Davies-Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641,  647,  22  Pac. 
Rep.  860.  See  McMenomy  v.  White,  115  Cal.  339,  343,  47  Pac.  Rep.  109; 
Marchant  v.  Hayes,  120  Cal.  137,  139,  52  Pac.  Rep.  154;  Humboldt  L.  M. 
Co.  v.  Crisp,  146  Cal.  686.  688,  81  Pac.  Rep.  30,  106  Am.  St.  Rep.  75,  2 
Am.  &  Eng.  Ann.  Cas.  811". 

=3  See  "Rights  of  Subcontractors,"  §§70  et  seq.,  ante;  "Material- 
men,"  §101,  ante;   "Laborers,"   §§112  et  seq.,  ante. 

Montana.     See  Gilliam  v.  Black,  16  Mont.  217,  40  Pac.  Rep.  303. 


589  REMEDiEg,  §  643 

ciples  of  contracts,  upon  rescission  or  breach  of  their  own 
contracts,  they  may  sue  such  person  in  personam  on  the 
implied  contract  for  the  reasonable  value  of  the  labor  or 
materials.-* 

Subclaimants,  under  a  valid  contract,  also  have  an  action 
against  the  owner  to  foreclose  a  lien  upon  the  property,  to 
the  extent  of  the  amount  due  the  contractor  at  the  time  of 
filing  the  claim  of  lien,^^  or  of  service  of  notice  on  the 
owner ;  -"  and  to  foreclose  a  lien  upon  the  fund,  or  in  per- 
sonam against  the  owner  or  employer,  to  the  extent  of  the 
amount  due  at  the  time  of  such  service,  or  to  become  due 
thereafter.-^ 

Under  a  void  contract,  or  where  the  provisions  of  section 
eleven  hundred  and  eighty-four  of  the  Code  of  Civil  Proce- 
dure, as  to  payments,  have  not  been  substantially  complied 
with,  subclaimants  have  an  action  to  foreclose  a  lien  for  the 
value  of  the  labor  done  or  materials  furnished,  indepen- 
dently of  the  amount  due  the  contractor ;  -*  and  an  action 
to  foreclose  a  lien  upon  the  fund,  or  in  personam  against  the 
owner  or  employer,  to  the  extent  of  the  amount  due  at  the 
time  of  the  service  of  the  notice.^® 

§  643.  Same.  Actions  by  owner's  laborers  and  material- 
men. The  owner's  laborers  and  material-men,  being  in 
privity  with  the  owner  or  employer,  have  a  right  of  action 
in  personam  against  the  person  so  contracting  with  them,^*^ 
and  also  a  right  of  action  to  foreclose  the  lien  on  the  prop- 
erty.^^ 

"  See  §S  334  et  seq.,  ante. 

Action  for  dainn;ireN  for  failure  to  Rive  bonil,  under  §  1203  of  the 
Code  of  Civil  Procedure  (lield  unconstitutional):  See  Gibbs  v.  Tally, 
63  Pac.  Rep.  168,  reverwed  133  Cal.  373,  65  Pac.  Rep.  570. 

="  "Obligations  of  Owner,"  §§523  et  seq.,  ante;  "Notice,"  §§547 
et  seq.,  ante;  "Validity  of  Contract,"  §§  315  et  seq.,  ante. 

-"  See  §§  547  et  seq.,  ante. 

"  First  Nat.  Bank  v.  Perris  Irr.  Dist.,  107  Cal.  55,  65,  40  Pac.  Rep.  45; 
Bates  V.  Santa  Barbara  County,  90  Cal.  543,  547,  27  Pac.  Rep.  438; 
Board  of  Education  v.  Blake  (Cal.,  Dec.  3,  1894),  38  Pac.  Rep.  536. 

»*  §§  559  et  seq.,  ante. 

»  See  §§  547  et  seq.,  ante. 

^  Central  L.  &  M.  Co.  v.  Center,  107  Cal.  193,  197,  40  Pac.  Rep.  334. 

See  iverr's  Cjo.  Code  Civ.  Proc,  §  1197. 

^  See  §§  101,  and  §S  112  et  seq.,  ante. 


§§  644, 645  mechanics'  liens.  590 

§  644.  Same.  Actions  by  owner.  The  owner  has  an 
action  against  the  original  contractor  under  a  valid  original 
contract,  and  against  his  own  laborers  and  material-men, ^- 
for  breach  of  the  contract;  but  he  has  no  action  on  the 
contract  under  a  void  contract.^^  But  in  such  an  action 
against  the  material-man,  when  the  contract  w^s  to  be  per- 
formed within  a  certain  time,  it  is  not  prematurely  com- 
menced when  brought  a  few  months  after  that  time,  if 
defendants  w^ere  still  working  thereunder  with  plaintiff's 
consent,  there  being  no  waiver  of  the  claim  for  damages.^* 

Damages.  Where  the  cause  of  action  for  a  breach  of  the 
contract  for  materials  was  complete  when  the  suit  was  com- 
menced, and  plaintiff  could  not  maintain  another  suit  for  the 
damages,  it  is  proper  to  allow  damages  accruing  after  the 
commencement  of  the  action ;  and  the  loss  of  profits  is  a 
natural  and  necessary  consequence  of  a  failure  to  furnish 
and  remodel  an  ice  plant,  as  agreed.^"  The  owner  has  also 
an  action  on  the  contractor's  bond,  when  such  is  given  in 
connection  with  the  original  contract.^* 

§  645.  Provisional  remedies.^'  Statutory  provision.  The 
statute  ^^  provides :  "  Except  as  otherwise  provided  in  this 
■chapter,  the  provisions  of  part  two  [relating  to  civil  actions] 
are  applicable  to,  and  constitute  the  rules  of  practice  in, 
the  proceedings  mentioned  in  this  chapter."  The  provisions 
of  the  Code  of  Civil  Procedure  relating  to  provisional  reme- 
dies,^" including  injunction,  attachment,  and  receivers,  are 
found  in  part  two  of  the  Code  of  Civil  Procedure. 

32  Bryson  v.  McCone,  121  Cal.  153,  53  Pac.  Rep.  637,  639. 

Wyoming.     Halleck  v.  Bresnahen,  3  "Wyo.  73,   2  Pac.  Rep.  537. 

^  See  §§  510  et  seq.,  §§  319  et  seq.,  ante. 

3-1  Bryson  v.  McCone,  121  Cal.   153,  53  Pac.  Rep.   637,   639. 

Action  by  owner  to  bring  in  all  parties,  and  deposit  of  money  in 
court:  See  Stimson  v.  Dunham,  146  Cal.  281,  283.  79  Pac.  Rep.  968. 

^'  Bryson  v.  McCone,   121  Cal.   153,  53  Pac.  Rep.  637,   639. 

Repudiation  of  part  of  contract  '«vitli  arcliitect  by  o^'ner,  optional 
•with  architect  to  treat  entire  contract  as  brolvcn,  or  waive  breach  as 
to  part  not  expressly  repudiated  and  continue  work:  De  Prosse  v. 
Royal  E.  D.  Co.,  135  Cal.  408,  410,  67  Pac.  Rep.  502. 

=>«  Kurtz  V.  Porquer,  94  Cal.  91,  29  Pac.  Rep.  413. 

See  "Bond,"  §§   281  et  seq..  ante;  "Sureties,"  §§  605  et  seq.,  ante. 

\%"yoming.     Halleck  v.  Bresnahen,  3  Wyo.  73,  2  Pac.  Rep.  537. 

"  See  "  Waiver,"  §§  627  et  seq.,  ante. 

»»  Kerr's  Cyc.  Code  Civ.  Proc,  §  1198. 

39  See  Kerr's  Cyc.  Code  Civ.  Proc.,  §§  478-574,  and  notes. 


I< 


591  REMEDIES.  §  646 

§  646.  Same.  Attachment.  It  is  thought  that  a  mechan- 
ic's lien,  when  perfected,  is  a  "  security  "  upon  real  property, 
under  subdivision  one  of  section  five  hundred  and  thirty- 
seven  of  the  Code  of  Civil  Procedure,  relating  to  attachments 
in  the  case  of  residents ;  *"  and  as  the  affidavit  requires  a 
statement,  in  the  case  of  residents,  that  the  "  payment  of  the 
same  has  not  been  secured  by  any  mortgage  or  lien  upon 
real  .  .  .  property,  ...  or  if  originally  so  secured,  that 
such  security  has,  without  any  act  of  plaintiff,  or  the  person 
to  whom  the  security  was  given,  become  valueless,"  it  would 
seem  that  no  attachment  could  issue,  unless  the  security  has 
become  valueless,  as  stated;  but  that  an  attachment  could 
issue  in  the  case  of  a  non-resident.'*^ 

Garnishment  before  suit.  It  has  been  shown  that  a 
proceeding  in  the  nature  of  an  attachment  is  allowed  to 
subclaimants,  before  suit,  to  garnish  funds  due  from  the 
employee  to  the  contractor.''- 

Garnishment  after  suit  commenced.  In  an  action  by  a  sub- 
contractor's material-inan  against  the  subcontractor,  where 
the  contractors,  upon  being  served  with  a  garnishment, 
deliver  to  the  sheriff  the  money  in  their  hands,  which  they 
owe  the  subcontractor,  the  material-man  has  no  further  claim 
upon  them  by  virtue  of  the  writ  of  attachment,  and  until  he 
obtains  a  judgment  against  the  subcontractor,  he  is  not 
entitled  to  demand  from  the  sheriff  the  moneys  held  under 
the  garnishment.*^ 

*o  See  Hill  V.  Grigsby,  32  Cal.  55,  59. 

See  also  Kerr's  Cyc.  Code  Civ.  Proe.,  §  537,  and  note. 

Attachment  for  dnm:i;;eM  cluiiiied  for  breach  of  contract  by  delay 
tn  delivery  of  steel  for  building:  See  Hale  Bros.  v.  Milliken,  142  Cal. 
134.  75  Pac.  Rep.  653. 

Oregon.  Elirman  v.  Astoria  &  P.  R.  Co.,  26  Oreg-.  377,  38  Pac.  Rep. 
306. 

■"  Under  the  act  of  1856  an  attachment  was  allowed  in  connection 
with  the  rig-ht  to  foreclose  a  mechanic's  lien:  Brennan  v.  Swasey,  16 
Cal.  140,  142,  76  Am.  Dec.  507.  The  lien,  however,  was  not  perfected 
by  the  filing-  of  a  claim  of  lien  at  the  time  of  the  commencement  of  the 
attachment  suit,  although  perfected  later,  on  tlie  same  day. 

See  "  Rights  of  Material-men,"  §  101,  ante. 

"  S§  547  et  seq.,  ante. 

"  Kruse  v.   Wilson.  3  Cal.  App.  91,  84  Pac.  Rep.  442. 

As  to  ^iiiiiiNhinent  of  public  uioneys,  see  Simpson  v.  Gamache,  134 
Oal.  216,  218,  66  Pac.  Rep.  222. 


§§  647, 648  mechanics'  liexs.  592 

§  647.  Same.  Materials  exempt  from  attachment.  Ma- 
terials furnished  are  exempt  from  attachment,  execution,  or 
other  legal  process,  except  in  favor  of  the  one  furnishing 
the  same,  so  long  as,  in  good  faith,  they  are  about  to  be 
applied  to  the  construction,  alteration,  or  repair  of  the 
building,  mining  claim,  or  other  improvement.** 

§  648.  Same.  Injunction.  In  an  action  to  foreclose  a 
lien,  claimants  are  entitled  to  an  injunction  to  restrain  a 
judgment  creditor  of  a  lessee,  whose  judgment  is  younger 
than  the  lien,  from  removing  a  building  from  the  lot,  when 
the  security  is  insufficient  without  such  building;  and  an 
amended  complaint,  by  leave  of  court,  or  a  judge  thereof, 
may  be  filed  without  prejudice  to  an  injunction  previously 
granted,  and  no  new  cause  of  action  being  introduced  when 
thus  filed,  the  injunction  will  not  be  dissolved  by  reason 
thereof.*^ 

Fund  not  deposited  in  court.  Where  the  fund  in  the 
hands  of  the  owner  was  not  actually  brought  into  court  by 
the  owner,  the  court  will  not  restrain  lien  claimants  from 
filing  their  claims  of  lien  and  enforcing  such  liens  in  regular 
course  for  the  preservation  of  their  rights.*^ 

**  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1196. 

Washington.  It  is  immaterial  whether  it  was  to  be  so  used  by  the 
owner,  or  the  one  succeeding  to  his  riglits;  nor  would  the  fact  that 
litigation  had  been  pending-  a  number  of  years  affect  that  question, 
or  necessarily  require  a  finding  that  there  was  no  intention  to  use  the 
materials  in  the  completion  of  the  building:  Potvin  v.  Wickersham,  15 
Wash.  646,  4  7  Pac.  Rep.  25. 

*'  Barber  v.  Reynolds,   33   Cal.  497,   503. 

See  "Forum,"  §§651  et  seq.,  post. 

Injunction  refused  where  building  had  already  been  removed,  al- 
though not  beyond  center  line  of  street:  See  Stowell  v.  W'addingham, 
100  Cal.  7,  34  Pac.  Rep.  436;  and  compare,  generally,  Miller  v.  Wad- 
dingham,  91  Cal.  377,  27  Pac.  Rep.  750,  13  L.  R.  A.  680;  Buckout  v. 
Swift,  27  Cal.  433,  87  Am.  Dec.  90;  Hill  v.  Gwin,  51  Cal.  47.  Impair- 
ment of  mortgage  security:  Lavenson  v.  Standard  Soap  Co.,  80  Cal. 
245,  22  Pac.  Rep.  184,  13  Am.  St.  Rep.  147;  Miller  v.  Waddingham, 
supra;  Perrine  v.  Marsden,  34  Cal.  14. 

Protection  of  mechanics'  liens  by  enjoining  sales  under  other  pro- 
cess: See  note  30  L.  R.  A.  128. 

Arizona.  Injunction  to  restrain  sale  of  property:  See  Bogan  v.  Roy 
(Ariz.,  May  28,   1906),  86  Pac.  Rep.   13,   15. 

Washington.  Enjoining  levy  of  execution  on  materials:  See  Potvin 
V.  Denny  H.  Co.,  37  Wash.  323,   79  Pac.  Rep.-  940. 

Injunction  against  sale  of  property  on  foreclosure  of  lien,  ^vife  not 
being  made  a  party:  See  Peterson  v.  Dillon,  27  Wash.  78,  67  Pac.  Rep.  397. 

«  Stimson  v.  Dunham,  146  Cal.  281,  284,  79  Pac.  Rep.  968. 


593  COMMENCING  ACTIONS  —  WHEN,    WHERE,   HOW.         §  649 


CHAPTER   XXXIII. 

TIME,    PLACE,   AND   MANNER   OF    COMMENCING    ACTIONS    TO 
FORECLOSE   LIEN. 

§  649.  Time  of  commencing  actions  to  foreclose. 

§  650.  Same.     Action  to  foreclose  lien  upon  the  fund. 

§  651.  Place  of  commencing  action  to  foreclose.     Generally. 

§  652.  Same.     Statutory  provision. 

§  653.  Same.     Jurisdiction   of   superior   court. 

§  654.  Same.     Amount   less  than  jurisdictional  limit. 

§  655.  Same.     Foreclosure   of   lien   in   Federal    courts. 

§  656.  Manner  of  commencing  actions  to  foreclose. 

§  657.  Same.     Summons. 

§  658.  Same.     Lis   pendens. 

§  649.  Time  of  commencing  actions  to  foreclose.'  Suit 
to  foreclose  the  lieu  must  be  commenced  within  the  time 

»  First  Nat.  Bank  v.  Perris  Irr.  Dist.,  107  Cal.  55,  62,  40  Pac.  Rep.  45. 

See  "Intervention,"  §§873  et  seq.,  post;  "Notice,"  §§  547  et  seq., 
ante. 

Time  of  commencing  action:  See  Hughes  Bros.  v.  Hoover,  3  Cal.  App. 
145,  84  Pac.  Rep.  681  (credit  given);  but  see  Provident  Mut.  B.  &  L. 
Assoc,  v.  Shaffer,  2  Cal.  App.  216,  S3  Pac.  Rep.  274. 

A.<4  to  running;  of  statute  of  liniitationisi  agrainst  enforcement  of  me- 
ehauic'N  lien,  see  7  Am.  &  Eng-.  Ann.  Cas.  940,  947. 

I.iniltation.s,  action  against  .seliool  iioard  by  architect:  See  Todd  v. 
Board  of  Education,   122  Cal.   106,   54   Pac.  Rep.   527. 

Time  of  commencing;  action.  Thresliiug;-machine:  See  Blackburn  v. 
Bell,  125  Cal.  171,  57  Pac.  Rep.  775. 

Alaslia.  Action  to  foreclose  within  six  months  after  filing  lien: 
Jorgenson  Co.  v.  Sheldon,  2  Alas.  607,  610. 

Colorado.  See  Small  v.  Foley,  8  Colo.  App.  435;  Orman  v.  Crystal 
River  R.  Co.,  5  Colo.  App.  493,  39  Pac.  Rep.  434. 

AVitliin  six  months  after  filing;  statement:  .Johnson  v.  Bennett.  6 
Colo.  App.  362,  40  Pac.  Rep.  847. 

Limitations,  four  mouths:  Burleigh  B.  Co.  v.  JSlerchant  B.  &  B.  Co., 
13  Colo.  App.  455,  59  Pac,  Rep.  S3,  86. 

Oklahoma.  Time  of  commencing  action:  See  Fulkerson  v.  Kilgore, 
10  Okl.  655,  64  Pac.  Rep.  5. 

Oreg;on.  Limitation:  2  Hill's  Ann.  Laws,  p.  1906  (miners'  liens),  ex- 
ception to  1  Hill's  Ann.  Laws,  §  16:  Burns  v.  White  Swan  M.  Co.,  35 
Oreg.  305,   57  Pac.  Rep.   637. 

Utah.  Action  must  be  commenced  within  one  year  from  filing 
statement  (under  Sess.  Laws  1890,  §  21):  Culmer  v.  Caine,  22  Utah  216, 
61  Pac.  Rep.  1008. 

AVashington.  Time  to  commence  action:  See  Peterson  v.  Dillon,  27 
Wash.  78,  67  Pac.  Rep.  397;  Service  v.  McMahon,  42  Wash.  452,  85  Pac. 
Rep.  33. 

Mech.  Liens  —  38 


§649 


mechanics'  liens.  594 


limited  by  statute;  otherwise  the  lien  is  lost.^  Limitations 
relied  upon,  however,  must  be  specifically  pleaded.^  The 
Code  of  Civil  Procedure  *  provides :  "  No  lien  provided  for 

-  Green  v.  Jackson  W.  Co.,  10  Cal.  374  (1855);  Flandreau  v.  White, 
18  Cal.  639,  641;  Van  W'inkle  v.  Stow,  23  Cal.  457,  458. 

Vnder  Practice  Act,  providing  tliat  a  suit  was  commenced  upon  the 
filing  of  a  complaint  and  the  issuing  of  a  summons  thereon,  it  was 
held  that  an  action  to  foreclose  tlie  lien,  not  commenced  witliin  the 
statutory  time  after  the  filing  of  the  claim  of  lien  with  the  recorder, 
could  not  be  maintained:  Green  v.  Jackson  'W.  Co.,  supra.  And  when 
there  is  a  general  provision,  as  in  the  General  Limitations  Act  of 
1851,  that  the  filing  of  the  complaint  should  be  deemed  the  commence- 
ment of  the  action,  a  provision  of  the  General  Practice  Act,  that  the 
complaint  must  be  filed  and  summons  issued  in  order  to  constitute 
the  commencement  of  the  action,  was  held  to  govern:  Flandreau  v. 
"White,  supra. 

Cross-coinplainant,  skh  actor,  must  coiuiuence  snit  to  foreclose  ^ritbin 
the  statutory  time:  See  Hughes  Bros.  v.  Hoover,  3  Cal.  App.  145,  84 
Pac.   Rep.    681. 

Colorado.  Cornell  v.  Conine-Eaton  L.  Co.,  9  Colo.  App.  225,  47  Pac. 
Rep.  912;  Orman  v.  Crystal  River  R.  Co.,  5  Colo.  App.  493,  39  Pac.  Rep. 
434   (1893). 

Oklalioma.  The  law  exempts  the  owner  of  the  property  from  suit 
for  sixty  days  after  the  completion  of  the  improvement;  but  it  was 
held  that  if  he  defends  the  action,  he  waives  the  exemption:  El  Reno 
E.  Co.  V.  Jennison,  5  Okl.  759,  50  Pac.  Rep.  144. 

Oregon.  No  process  was  served  thereon,  nor  did  they  make  ser- 
vice thereof  on  the  owners  of  the  property  within  six  months  after 
the  filing  of  their  respective  claims:  Title  G.  &  T.  Co.  v.  W^renn,  35 
Oreg.  62,  56  Pac.  Rep.  271,  76  Am.  St.  Rep.  454.  But  see  Coggan  v. 
Reeves,  3  Oreg.  275,  where,  under  an  early  statute,  the  failure  to  bring 
the  action  within  the  statutory  time  precluded  a  defendant  claimant 
from  enforcing  his  lien  after  the  statuory  period  (one  year),  by  way  of 
answer.  See  Willamette  Falls  Co.  v.  Perrin,  1  Oreg.  182  (1851;  one 
year). 

Washington.  Gen.  Stats.,  §  1670,  provided  that  the  action  must  be 
commenced  within  eight  months  after  the  claim  had  been  filed,  or  if 
a  credit  was  given,  then  within  eight  months  from  the  expiration  of 
such  credit;  and  the  following  clause,  "but  no  lien  shall  continue  in 
force  under  this  chapter  for  a  longer  time  than  two  years  from  the 
time  the  work  is  completed  by  agreement  or  credit  given,"  means  that 
such  credit  cannot  be  extended  for  a  longer  time  than  two  years  and 
the  lien  maintained:  Pacific  Mfg.  Co.  v.  Brown,  8  Wash.  347,  36  Pac. 
Rep.  273. 

3  Towle  v.  Sweeney,  2  Cal.  App.  29,  S3  Pac.  Rep.  74. 

Court  must  determine  issue  as  to  limitations:  Towle  v.  Sweeney,  2 
Cal.  App.  29,  83  Pac.  Rep.  74. 

See  note  7  Am.  &  Eng.  Ann.  Cas.  947. 

Action  against  sureties  on  contractor's  bond  is  governed  by  same 
limitation  as  action  against  contractor:  Paige  v.  Carroll,  61  Cal.  211; 
Sonoma  County  v.  Hall,  132  Cal.  589,  62  Pac.  Rep.  257,  312,  65  Id.  12, 
459;  Towle  v.  Sweeney,  2  Cal.  App.  29,  33,  83  Pac.  Rep.  74.  See  Farmers' 
&  M.  Bank  v.  Kinsley,  2  Doug.   (Mich.)  378,  403. 

*  Kerr's  Cyc.  Code  Civ.  Proc,  §  1190. 


I 


595  COMMENCING  ACTIONS  —  WHEN,   WHERE,    HOW.         §  649 

in  this  chapter  binds  any  building,  mining  claim,  improve- 
ment, or  structure,  for  a  longer  period  than  ninety  days 
after  the  same  has  been  filed,  unless  proceedings  be  com- 
menced in  a  proper  court  within  that  time  to  enforce  the 
same;  or,  if  a  credit  be  given,  then  ninety  days  after  the 
expiration  of  such  credit ;  but  no  lien  continues  in  force  for 
a  longer  time  than  two  years  from  the  time  the  work  is 
completed,  by  an  agreement  to  give  credit." 

The  general  rule  under  this  provision  is,  that  recorded 
claims  bind  the  building  only  ninety  days  after  the  date  of 
record,  unless  in  the  mean  time  suits  are  commenced  to  fore- 
close them.^ 

An  amendment  to  the  complaint,  based  upon  the  same 
cause  of  action,  relates  back  to  the  date  upon  which  the 
original  complaint  was  filed,  and  hence  is  commenced  within 
ninety  days  after  the  claim  of  lien,  if  the  original  complaint 
is  so  filed.** 

Debt  must  be  payable.  However,  there  can  be  no  fore- 
closure of  a  mechanic's  lien  until  the  debt  for  which  the  lien 
is  given  as  security  has  become  payable.  The  complaint 
must  show  this  fact,  otherwise  it  will  not  support  the  judg- 
ment/ 

5  White  V.  Soto,  82  Gal.  654,  658,  23  Pac.  Rep.  210;  Goss  v.  Strelitz, 
54  Gal.  640,  643  (dictum).  See  Roylance  v.  San  Luis  Hotel  Go.,  74  Gal. 
273,  278,  20  Pac.  Rep.  573. 

"  White  V.  Soto,  82  Cal.  654,  658,  23  Pac.  Rep.  210. 

See  "  Amendment,"  §§  865  et  seq.,  post. 

See  Jones  v.  Frost,  28  Cal.  245.  246;  Barber  v.  Reynolds,  33  Gal.  497, 
501;  Easton  v.  O'Reilly,  63  Gal.  305,  308;  McFadden  v.  Ellsworth  M.  & 
M.  Co.,  8  Nev.  57,  60;  Louisville  &  N.  R.  Go.  v.  House,  104  Tenn.  110,  111. 
6'!  S.  W.  Rep.  836. 

'  Harmon  v.  Ashniead.  60  Cal.  439,  441. 

A  right  in  tlie  plaintilT  and  a  correlative  ^vrone  in  tiic  defenilnut 
are  essential  to  a  right  to  maintain  the  action:  Harmon  v.  Ashmead, 
supra.  See  Abbe  v.  Marr,  14  Gal.  210;  Prisch  v.  Galer,  21  Cal.  71;  Kin- 
sey  V.  Wallace,  36  Gal.  463;  Ghoynski  v.  Cohen,  39  Cal.  501,  2  Am.  Rep. 
476;  Roberts  v.  Treadwell.  50  Cal.  520. 

And  where,  as  under  the  insolvency  act  of  1880,  a  debt  secured  by  a 
meclianic's  lien  was  not  provable  tliereunder,  and  a  suit  to  foreclose 
the  lien  was  not  stayed  by  any  of  its  provisions,  it  was  held  that  the 
action  to  foreclose  must  be  commenced  within  the  ninety  days,  not- 
withstanding the  insolvency  proceedings:  Bradford  v.  Dorsey,  63  Gal. 
122.  123.  See  §§  11,  56,  57,  and  67  of  the  "Act  to  Establish  a  Uniform 
System  of  Bankruptcy  throughout  the  United  States,"  approved  July  1, 
1898    (1  Fed.  Stats.  Ann.,  pp.   685-688). 


§  650  mechanics'  liens.  596 

Credit  given.  Suit  may  be  brought  by  an  original  con- 
tractor within  ninety  days  after  the  expiration  of  a  credit 
given. ^ 

§  650.     Same.     Action  to  foreclose  lien  upon  the   fund. 

Suits  to  foreclose  the  lien  upon  the  "  fund,"  or  in  personam 
against  the  owner,  based  on  the  notice  to  the  owner  under 
section  eleven  hundred  and  eighty-four,''  are  not  required, 
under  the  section  quoted  in  the  preceding  section,  to  be 
commenced  within  ninety  days  after  the  filing  of  a  claim 
of  lien.^" 


Nevada.  An  assignee  in  bankruptcy  took  the  realty  of  the  bank- 
rupt charged  with  mechanics'  liens  theretofore  arising  for  labor  per- 
formed on  the  same,  and  thereafter  to  be  enforced  by  the  filing  of  an 
account,  etc.,  as  provided  in  the  law:  Sabin  v.  Connor,  21  Fed  Cas.,  p. 
124   (1871). 

Oklahoma.  See  Stats.  1893  (4531).  "Wliere  a  person  has  a  lien  on 
property  securing  several  different  demands,  or  demands  due  at  sep- 
arately stated  intervals,  it  is  not  necessary  that  he  should  wait  to 
bring  his  suit  until  all  become  due.  He  may  bring  an  action  to  fore- 
close the  lien  upon  any  default.  The  court,  of  course,  cannot  render 
judgment  for  more  than  is  due  at  the  time  the  judgment  is  rendered. 
.  .  .  But  an  instalment  falling  due  before  the  trial,  although  not  due 
when  the  suit  was  brought,  may  be  included  in  the  decree":  El  Reno 
E.  L.  &  T.  Co.  V.  Jennison,  5  Okl.  769,  50  Pac.  Rep.  144. 

Oregon.  The  lien  law  then  in  force  was  not  opposed  to  the  terms 
and  policy  of  the  bankruptcy  act  of  1867:  In  re  Coulter,  2  Sawy.  42,  6 
Fed.  Cas.,  p.  637,  6  Nat.  Bank.  Reg.  64,  1  Am.  L.  T.  Rep.  Bank.  257,  3 
Chic.  Leg.  News  377,  4  Am.  L.  T.  131. 

Under  2  Hill's  Ann.  Laws,  §  3675,  it  was  held  that  when  more  than 
six  months  had  elapsed  after  the  expiration  of  credit  on  certain  in- 
stalments, no  recovery  could  be  had  on  such  instalments.  The  plain- 
tiff "  was  not  required  to  wait  until  the  last  instalment  became  due 
before  bringing  its  suit,  but  could  have  brought  it  at  any  time  within 
six  months  after  the  filing  of  the  lien,  and  obtained  a  decree,  as  pro- 
vided in  §  421,  which  is  made  applicable  to  suits  to  foreclose  mechan- 
ics' liens,  by  §3677":  Capital  L.  Co.  v.  Ryan,  34  Oreg.  73,  54  Pac.  Rep. 
1093. 

AVasliington.  Under  the  assignment  statute,  it  was  held  that  the 
lien  could  not  be  enforced  against  the  property  after  it  had  passed  into 
tlie  hands  of  the  assignee  for  the  benefit  of  creditors,  but  all  those 
having  claims  against  the  estate  were  required  to  present  them  in  the 
insolvency  proceeding:  Quinby  v.  Slipper,  7  Wash.  475,  35  Pac.  Rep.  116, 
38  Am.  St.  Rep.  899. 

«  Knowles  v.  Baldwin,  125  Cal.  224,  226,  57  Pac.  Rep.  988. 

Time  of  oommeneing;  action  accruing  after  the  expiration  of  credit: 
Hughes  Bros.  v.   Hoover,   3   Cal.   App.   145,   84  Pac.  Rep.   681. 

»  Kerr's  Cyc.  Code  Civ.  Proc,  §  1184. 

"  First  Nat.  Bank  v.  Perris  Irr.  Dist.,  107  Cal.  55,  65,  40  Pac.  Rep.  45. 

See  "  Notice,"  §§  547  et  se"q.,  ante. 


I 


597     COMMENCING   ACTIONS  —  WHEN,   WHERE,    HOW.  §§651,652 

§  651.  Place  of  commencing  action  to  foreclose."  Gen- 
erally. Under  the  California  constitution  of  1879,'-  the 
superior  court  has  original  jurisdiction  of  all  cases  in 
equity,^^  and,  apparently,  to  enforce  ail  liens  upon  real 
property;  and  it  is  also  provided  that  all  suits  for  the 
enforcement  of  liens  upon  real  estate  must  be  commenced 
in  the  county  in  which  the  real  estate,  or  an^^  part  thereof, 
affected  by  such  action  or  actions,  is  situated.  The  pro- 
visions as  to  forum,  found  in  part  two  of  the  Code  of 
Civil  Procedure,  are  applicable  to  proceedings  to  enforce 
mechanics'  liens. ^* 

§  652.  Same.  Statutory  provision.  Section  three  hun- 
dred and  ninety-two  ^^  provides :  "  Actions  for  the  following 
causes  must  be  tried  in  the  county  in  which  the  subject  of 
the  action  or  some  part  thereof  is  situated,  subject  to  the 
power  of  the  court  to  change  the  place  of  trial  as  provided 
in  this  code :  1.  For  the  recovery  of  real  property,  or  of  an 
estate  or  interest  therein,  or  for  the  determination,  in  any 
form,  of  such  right  or  interest.  ...  3.  For  the  foreclos- 
ure of  all  liens  and  mortgages  on  real  property.  Where  the 
real  property  is  situated  partly  in  one  county  and  partly  in 
another  the  plaintiff  may  select  either  of  the  counties,  and 

"  Colorado.  Amount  of  each  separate  claim  determined  the  juris- 
diction of  county  court:     Keystone  M.  Co.  v.  GaHagher,  5  Colo.  23  (1872). 

Superior  court  of  Denver  has  jurisdiction  over  the  contract  and 
person  of  non-resident  owner  contracting  for  building-  erected  in  Den- 
ver: Weiner  v.  Rumble,  11  Colo.  607,  19  Pac.  Rep.  760. 

Jurisdiction  of  supreme  court,  wliere  none  of  tlie  claims  amount  to 
$2,500:  Spangler  v.  Green,  21  Colo.  505,  42  Pac.  Rep.  674,  52  Am.  St.  Rep. 
259  (constitutional  question  involved). 

^Vasllington.  Under  Ballinger's  Ann.  Codes  and  Stats.,  §  5910  (Laws 
1893,  §11,  p.  36),  "no  person  can  begin  an  action  to  foreclose  a  lien 
upon  any  property  while  a  prior  action  begun  to  foreclose  another 
lien  on  the  same  property  is  pending"  (Laws  1893,  §  11,  p.  36);  but  the 
language  of  this  provision,  "another  lien,"  does  not  refer  to  an  action 
to  foreclose  a  mortgage  then  pending,  but  only  to  the  "liens  provided 
by  this  act":  Nason  v.  Northwestern  M.  Co.,  17  Wash.  142,  49  Pac. 
Rep.  235. 

1-  Article  vi,  §  5. 

'^  See  Kerr's  Cyc.  Code  Civ.  Proc,  §  76,  and  note. 

»   Kerr's  Cyc.  Code  Civ.  Proc,  §  1198. 

Utali.  Action  to  be  brought  in  county  where  mining  claim  situate: 
Fields  v.  Daisy  G.  M.  Co.,  26  Utah  373.  73  Pac.  Rep.  521. 

"  See  Kerr's  Cyc.  Code  Civ.  Proc,  g  392,  and  note. 


§§  653, 654  mechanics'  liens.  598 

the  county  so  selected  is  the  proper  county  for  the  trial  of 
such  action ;  provided,  that  in  the  case  mentioned  in  this 
subdivision,  if  the  plaintiff  prays  in  his  complaint  for  an 
injunction  pending  the  action,  or  applies  pending  the  action 
for  an  injunction,  the  proper  county  for  tlie  trial  shall  be 
the  county  in  which  the  defendant  resides  or  a  majority 
of  the  defendants  reside  at  the  commencement  of  the 
action."  ^^ 

§  653.  Same.  Jurisdiction  of  superior  court.  The  su- 
perior court  has  jurisdiction  in  equity,  not  only  of  a  suit 
to  foreclose  a  mechanic's  lien  on  the  real  property  of  the 
owner,  even  where  the  amount  claimed  is  less  than  three 
hundred  dollars,  but  likewise  of  an  action,  under  section 
eleven  hundred  and  eighty-four,  to  subject  funds  owing  to 
the  contractor  by  such  owner,  which  would  necessitate  an 
accounting  and  an  apportionment  among  the  several  claim- 
ants of  the  fund,  after  the  liability  of  the  contractor  had 
been  fixed.^^ 

§  654.     Same.    Amount  less  than  jurisdictional  limit.     In 

California  and  other  code  states,  legal  and  equitable  remedies 
may  be  pursued  and  granted  by  the  same  tribunal,  and  in  a 
single  action,  and  the  fact  that  the  equitable  relief  of  fore- 
closure of  the  lien  is  not  obtained  in  the  superior  court,  by 
failure  to  establish  the  lien,  furnishes  no  reason,  in  itself, 
for  the  refusal  of  the  legal  relief  of  judgment  for  the  amount 
claimed,  even  if  it  be  less  than  the  jurisdictional  amount  of 

"  Under  the  act  of  1850,  county  courts  had  no  jurisdiction  to  en- 
force a  mechanic's  lien,  where  the  amount  in  controversy  exceeded  two 
hundred  dollars:  Brock  v.  Bruce,  5  Cal.  279;  but,  under  the  act  of  1861, 
county  courts  had  jurisdiction  to  enforce  mechanics'  liens:  McNeil  v. 
Borland,  23  Cal.  144;  Van  V^inkle  v.  Stow,  23  Cal.  457.  In  Davis  v. 
Livingston,  29  Cal.  283,  an  action  was  commenced  in  the  justice's 
court  for  $124,  and  the  case  was  transferred  to  the  district  court  for 
trial   (under  act  of  1862,  Stats.  1862,  p.  385). 

"  Weldon  v.  Superior  Court,  138  Cal.  427,  431,  71  Pac.  Rep.  502. 

See' next  note,  post. 

Place  of  foreolosins  Hen  by  trustee  in  bankruptcy,  in  state  court: 
See  In  re  Grissler,  136  Fed.  Rep.  754,  69  C.  C.  A.  406. 

WashinKton.  Jurisdiction  of  court:  See  Powell  v.  Nolan,  27  Wash. 
818,  67  Pac.  Rep.  712,  718.     • 


699    COMMENCING   ACTIONS  —  WHEN,   WHERE,   HOW.    §§655,656 

three  hundred  dollars,  in  the  absence  of  an  attempt  to  fraud- 
ulently confer  jurisdiction  on  the  court/^ 

§  655.     Same.     Foreclosure    of    lien    in    Federal    courts. 

"Where  the  action  to  foreclose  a  mechanic's  lien,  created 
under  the,  provisions  of  a  state  statute,  is  brought  in  the 
circuit  court  of  the  United  States,  the  bill  in  equity  must 
show  the  jurisdictional  facts  of  citizenship,  in  order  that 
the  court  may  entertain  the  bill.^^ 

§  656.  Manner  of  commencing  actions  to  foreclose.  An 
action  to  foreclose  a  mechanic's  lien  upon  real  property  is 
commenced  like  civil  actions,  by  the  filing  of  a  complaint.-" 

's  Becker  v.  Superior  Court  (Cal.  Sup.,  May  21,  1907),  90  Pac.  Rep. 
689,  overruling;  MHler  v.  Carlisle,  127  Cal.  327,  59  Pac.  Rep.  785;  and 
see  Williams  v.  Rowell,  145  Cal.  259,  261,  78  Pac.  Rep.  725;  Weldon  v. 
Superior  Court,  138  Oal.  427,  429,  71  Pac.  Rep.  502. 

CcHts,  in  action  to  foreclose  lien  on  tlire8hln$(-ninctiine,  for  less  tlian 
jurisdictional  amount:  See  Clark  v.  Brown,  141  Cal.  93,  95,  74  Pac.  Rep. 
548. 

Action  to  cancel  contract,  amount  less  tlian  tliree  hundred  dollars, 
Jurisdiction  of  superior  court:  See  Sullivan  v.  California  R.  Co.,  142  Cal. 
201,  206,  75  Pac.  Rep.  767. 

Colorado.  Attorneys'  fees  not  a  part  of  debt,  damage,  or  claim,  lim- 
iting jurisdiction  of  county  court:  See  Eagle  G.  M.  Co.  v.  Bryarly,  28 
Colo.   262,  65  Pac.  Rep.  52,  54. 

''  Idaho.  Jurisdiction  of  Federal  courts:  See  Holt  v.  Bergevin 
(Idaho),  60  Fed.  Rep.  1. 

Nevada.  Hampton  v.  Truckee  C.  Co.,  9  Sawy.  381,  19  Fed.  Rep.  1,  1 
West  Coast  Rep.  17. 

-"  Kerr's  Cyc.  Code  Civ.  Proc,  §§405,  1198. 

Under  the  act  of  1801  (Stats.  1861,  p.  495),  the  proceeding  to  fore- 
close a  mechanic's  lien  was  changed  from  an  action  to  a  special  pro- 
ceeding, and  required  the  filing  of  a  petition;  and  the  clerk  was 
recjuired  to  issue  a  notice,  which  had  to  be  published,  but  the  act  re- 
quired no  issuance  of  summons;  and,  under  this,  it  was  held  that  the 
suit  was  sufficiently  commenced  if  the  petition  was  filed  and  the 
notice  issued  by  the  clerk:  Van  Winkle  v.  Stow,  23  Cal.  457,  459. 

Before  the  Practice  Act,  as  it  stood  in  1857,  a  suit  was  not  com- 
menced until  the  summons  was  issued:  Green  v.  Jackson  W.  Co.,  10 
Cal.  374. 

See  ■'  Time  of  Commencing,"  §§  649  et  seq.,  ante. 

Alaska.  Procedure  as  on  foreclosure  of  mortgage:  Jorgenson  v. 
Sheldon,   2  Alas.  607,  610. 

Hawaii.  Filinfr  declaration  is  commencement  of  action:  Hackfeld 
V.  Hilo  R.  Co.,   14   Hawn.  448,  457. 

Tlirce  months'  limitation:  Pacific  H.  Co.  v.  Lincoln,  12  Hawn.  35S. 

Oregon.  Action!  when  commenced:  Burns  v.  White  Swan  M.  Co.,  35 
Oreg.  305,  57  Pac.  Rep.  637. 

Utali.  Publishing  notice,  inviting  presentation  of  claims:  See  Sand- 
berg  V.  Victor  G.  &  S.  M.  Co.,  24  Utah  1,  66  Pac.  Rep.  360. 


§  657  mechanics'  liens.  600 

§  657.  Same.  Summons.-^  Where  the  affidavit  of  service 
of  sumnious  on  a  corporation  states  that  affiant  personally 

^>  Before  the  amendment  of  1897  to  §  407,  Code  Civ.  Proc,  omitting 
the  requirement  as  to  "  the  statement  of  the  nature  of  the  action  in 
general  terms,"  it  was  held  that  it  was  not  necessary  to  state  whether 
the  right  to  the  money  sought  to  be  recovered  accrued  from  work  and 
labor,  or  from  goods  sold  and  delivered,  or  to  state  the  kind  of  lien 
souglit  to  be  foreclosed,  or  on  what  property  such  lien  attached.  The 
object  of  the  requirement  of  the  statute  as  to  what  the  summons  shall 
contain  is  carried  out  by  a  general  statement  of  what  is  specialized  in 
the  complaint  to  which  the  summons  points,  expressly,  or  by  implica- 
tion of  law;  and  it  was  held  immaterial  whether  a  copy  of  the  com- 
plaint was  served  with  the  summons  or  not.  (Before  amendment  of 
1893  to  §  410,  reqiiiring  the  service  of  a  copy  of  the  complaint  with  the 
summons):  Bewick  v.  Muir,  83  Cal.  368,  369,  23  Pac.  Rep.  390. 

Appearance  of  infants:  See  §  668,  post. 

Service  of  summons:  See  Berentz  v.  Belmont  O.  Co.,  148  Cal.  577,  580, 
84  Pac.  Hep.  47,  113  Am.  St.  Rep.  308. 

Colorado.  Under  act  of  1872,  notice  to  other  claimants  to  present 
claim;  summons  returned  as  in  chancery  proceedings:  Decker  v. 
Myles,  4  Colo.  558  (1872);  Keystone  M.  Co.  v.  Gallagher,  5  Colo.  23 
(1872;  service  by  publication).  In  Davis  v.  Mouat  L.  Co.,  2  Colo.  App. 
381,  31  Pac.  Rep.  187  (1889),  it  was  held  that  publication  of  summons 
would  not  support  a  judgment  against  a  non-resident  contractor, 
since  the  recovery  of  the  debt  from  the  contractor  is  the  principal 
object  of  the  suit,  and  the  right  to  enforce  the  lien  on  the  property 
against  the  owner  is  collateral  and  incident.  See  also  Loma.x  v. 
Besley,  1  Colo.  App.  21,  27  Pac.  Rep.  167. 

Publication  of  summons:  See  Eagle  G.  M.  Co.  v.  Bryarly,  28  Colo. 
262,  65  Pac.  Rep.   52,   55. 

Issuance  of  alias  summons  in  consolidated  action,  under  3  Mills's 
Ann.  Codes  and  Stats.,  1st  ed.,  §  2867,  not  necessary:  Eagle  G.  M.  Co.  v. 
Bryarly,  28  Colo.  262,  65  Pac.  Rep.  52,  55. 

Montana.  Service  of  summons:  See  Missoula  M.  Co.  v.  O'Donnell,  24 
Mont.  65,  60  Pac.  Rep.  991. 

IVevada.  Service  of  summons:  See  Lonkey  v.  Keyes  S.  M.  Co.,  21 
Nev.  312,  31  Pac.  Rep.  57,  17  L.  R.  A.  351.  Publication  of  notice  to 
other  lien-holders:  Id. 

Xe«-  Mexico.  Service  of  summons  by  publication  against  non- 
resident, valid,  as  far  as  proceeding  in  rem  is  concerned:  Gunst  v.  Las 
Vegas  M.  B.  Assoc,  11  N.  M.  251,  67  Pac.  Rep.  743. 

Orei^on.  Coggan  v.  Reeves,  3  Oreg.  275  (decided  in  1871).  See,  as 
to  contents  of  summons,  Willamette  Falls  Co.  v.  Riley,  1  Oreg.   183. 

Time  of  service  on  foreiira  corporations:  See  Burns  v.  White  Swan 
M.  Co.,  35  Oreg.  305,  57  Pac.  Rep.  637. 

Sufficiency  of  publication  of  summons:  Goodale  v.  Coffee,  24  Oreg. 
346,  33  Pac.  Rep.  990   (sufficiency  of  affidavit  for  publication). 

Utah.  Service  of  summons  within  one  year  of  filing  complaint, 
under  Comp.  Laws,  §§  3203,  3204,  and  service  of  summons  on  cross- 
complaint:  See  Culmer  v.  Caine,  22  Utah  216,  61  Pac.  Rep.  1008. 

Washingrton.  Failure  to  serve  husband,  community  property,  time 
to  commence  action  on  lien  having  expired:  See  Powell  v.  Nolan,  27 
Wash.  318,  67  Pac.  Rep.  712,  721. 

Service  of  summons  on  one  spouse;  community  property:  See  Powell 
V.  Nolan,   27  Wash.  318,   67  Pac.  Rep.   712,  716. 

Service  of  summons  on  cross-complaint  unnecessary:  See  Powell  V. 
Nolan,  27  Wash.  318,  67  Pac.  Rep.  712,  717. 


601  COMMENCING  ACTIONS  —  WHEN,   WHERE,    HOW.         §  658 

served  the  same  upon  E.,  "  the  managing  agent  "  thereof, 
"  by  delivering  to  said  E.,  the  said  managing  agent  of  said 
defendant  (corporation),  personally,  a  copy  of  said  summons 
attached  to  a  true  copy  of  the  complaint,  and  that  he  knows 
the  person  so  served  to  be  the  person  acting  as  managing 
agent  for  said  defendant  (corporation),"  it  shows  that  the 
corporation  was  served,  and  is  prima  facie  proof  that  E.  was 
such  managing  agent,  and  the  statute  authorizes  the  service 
to  be  made  upon  him  for  the  corporation.-- 

§  658.  Same.  Lis  pendens.-^  Contrary  to  the  general 
rule,  it  has  been  held  that  a  purchaser  or  encumbrancer  of 
property  upon  which  a  claim  of  mechanic's  lien  is  filed,  and 
suit  is  brought  to  foreclose  the  same,  is  chargeable  with 
notice  thereof,  by  virtue  of  the  mechanic's-lien  statute,  with- 
out the  necessity  of  filing  a  lis  pendens.^* 

=2  Keener  v.  Eagle  Lake  L.  &  I.  Co.,  110  Cal.  627,  629,  43  Pac.  Rep.  14. 

25  Horn  V.  Jones,  28  Cal.  194,  203;  Reeve  v.  Kennedy,  43  Cal.  643  (tax 
sale);  and  see  Kerr's  Cjc.  Code  Civ.  Proc.,  §§  409,  1186,  1196,  and  notes. 

See  note  56  Am.  St.  Rep.  853-878,  especially  p.  856. 

As  to  the  necessity  of  filing  a  lis  pendens,  see  "  Priorities,"  §§  486  et 
seq.,  ante. 

"  Colorado.  Empire  L.  &  C.  Co.  v.  Engley,  18  Colo.  388,  33  Pac. 
Rep.  153. 

See  "  Priorities,"   §§  486  et  seq..  ante. 

Nevada.  Kee  Lonkey  v.  Keyes  S.  M.  Co.,  21  Nev.  312,  31  Pac.  Rep.  57, 
17  L.  R.  A.  351. 

Wasliington.  See  Frank  v.  Jenkins,  11  Wash.  611,  616,  40  Pac.  Rep. 
220. 

See  §  669,  post. 


§  659  mechanics'  liens.  602 


CHAPTER    XXXIV. 

PARTIES. 

§  659.  Parties  plaintiff.     Statutory  provision. 

§  660.  Same.     Object  of  provision. 

§  661.  Same.     Raising  objection. 

§  662.  Parties  defendant.     Generally. 

§  663.  Same.     Owner. 

§  664.  Same.     Employers.     Copartnerships. 

§  665.  Same.     Contractor. 

§  666.  Same.     Subcontractor. 

§  667.  Same.     Lien  claimants. 

§  668.  Same.     Holders   of  prior  interests  and  liens. 

§  669.  Same.     Interests  pendente  lite. 

§  659.  Parties  plaintiff.^  Statutory  provision.  Section 
eleven  hundred  and  ninety-five  -  provides :  "  Any  number  of 
persons  claiming  liens  may  join  in  the  same  action."  ^  In 
construing  this  provision,  the  supreme  court  of  California 
said :  "  Section  eleven  hundred  and  ninety-five  of  the  Code 
of  Civil  Procedure,  it  will  be  observed,  does  not  say  whether 
the  liens  must  be  all  upon  the  same  property,  or  simply 
against  the  same  person.  "We  incline  to  the  former  con- 
struction." * 

Several  different  liens,  by  different  claimants,  on  the 
same  property  may  be  united  in  the  same  complaint.® 
Where  the  claims  of  lien-holders  are  several,  separate,  and 
distinct,  without  any  community  of  interest  in  the  claims 
themselves,  and  although  there  is  no  contract  in  writing,  they 

'  Partner  as  assignee  of  partnership.  Certificate  of  partnersliip: 
See  Gray  v.  Wells,  US  Cal.  11.  17,  50  Pac.  Rep.  23. 

See  "  Assignees,"  §§  588  et  seq.,  ante;  "  Joinder  of  Causes  of  Action," 
II  723  et  seq.,  post. 

2  Kerr's  Cye.  Code  Civ.  Proc.,  §  1195. 

3  Colorado.     Branham  v.  Nye,  9  Colo.  App.  19,  47  Pac.  Rep.  402. 

*  Malone  v.  Big-  Flat  G.  M.  Co.,  76  Cal.  578.  582,  18  Pac.  Rep.  772. 

■"•  Bootli  V.  Pendola,  88  Cal.  36.  42;  Malone  v.  Big-  Flat  G.  M.  Co., 
supra.  See  Parker  v.  Savage  P.  M.  Co.,  61  Cal.  348;  Curnow  v.  Happy- 
Valley   B.   G.   Co.,    68   Cal.    262.    26b,    9   Pac.   Rep.    149. 

See  "Joinder  of  Causes  of  Action,"  |§  723  et  seq.,  post. 


603  PARTIES.  §§  660, 661 

may,  under  such  a  provision,  join  as  plaintiffs  to  foreclose 
their  liens." 

Where  a  number  of  adjoining  placer  mining  claims,  owned 
by  one  company,  are  used  and  operated  as  one  mine,  they 
constitute  one  piece  for  the  purposes  of  the  mechanic's-lien 
law,  and  the  claims  upon  different  parts  of  the  property  may 
be  joined  in  one  action,  but  the  counts  should  be  separately 
stated.'^ 

§  660.  Same.  Object  of  provision.  The  purpose  of  the 
provision  quoted  in  the  last  preceding  section,  allowing  per- 
sons having  liens  upon  the  same  property  to  join  as  plaintiffs, 
is  to  save  expense,  but  more  particularly  to  enable  the 
court  to  determine  the  relative  rights  of  lien-holders  in  the 
fund.® 

§  661.  Same.  Raising  objection.  A  plea  of  non-joinder 
of  necessary  parties  defendant  in  the  action,  if  otherwise 
well  taken,  must  prevail,  irrespective  of  whether  the  plain- 
tiff knew  of  the  existence  of  the  matter  pleaded  or  not.** 

Estoppel.  Where  an  action  is  brought  to  foreclose  a  lien 
by  one  partner,  whose  copartner  has  given  the  owner  a 
fraudulent  release,  the  owner  is  prevented  by  estoppel  from 
alleging  that  such  copartner  is  a  necessary  party  to  the 
action.^" 

«  Barber  v.  Reynolds,  33  Cal.  497,  502;  Barber  v.  Reynolds,  44  Cal. 
519,  532  (1862).  See  Easton  v.  O'Reilly,  63  Cal.  305;  Gorton  v.  Ferdl- 
nando,  64  Cal.  11,  27  Pac.  Rep.  941. 

See   "Joinder   of   Causes   of   Action,"    §§723   et   seq.,   post. 

'  Malone  v.  Big  Flat  G.  M.  Co.,  76  Cal.  578,  582,  18  Pac.  Rep.  772.  See 
Hamilton  v.  Delhi  M.  Co.,  118  Cal.  148,  151,  50  Pac.  Rep.  378. 

"  rtali.  Purpose  of  law  providing  for  combining  of  aU  parties 
upon  the  same  property  in  one  action  is  to  save  expense,  and  to 
enable  tlie  court  to  more  definitely  determine  the  respective  rif^lits  of 
the  several  lien  claimants  as  to  distributing  the  fund  accordingly;  and 
substantial  compliance  with  provisions  of  Rev.  Stats.  1898,  §  1391,  is 
all  that  is  required:  Elwell  v.  Morrow,  28  Utah  278,  78  Pac.  Rep.  605, 
607. 

»  McDonald  v.  Backus,  45  Cal.  262,  264   (1868;  partners). 

AVaNhinKton.  But,  if  not  raised  below,  cannot  be  raised  on  appeal: 
Vincent  v.  Snoqualmic  :Mill  Co.,  7  Wash.  5GG,  35  Pac.  Rep.  390. 

Objection  as  tu  ilofeet  of  parties,  uot  to  he  rniseil  ou  iiitrodiietiou  of 
evidence:  See  Greene  v.  Finnell,  22  ^\■asll.   186,  60  Pac.  Rep.   14  1. 

"'  South  Fork  C.  Co.  v.  Gordon,  73  U.  S.  (6  Wall.)  561,  bk.  IS  L.  ed. 
894. 


§  662  mechanics'  liens.  604 

§  662.  Parties  defendant.^^  Generally.  The  general 
rules  with  reference  to  the  joinder  of  parties  defendant  apply 
in  actions  to  foreclose  mechanics'  liens/^  except  where 
changed  by  statute.  No  attempt  will  be  made  to  discuss 
the  subject  in  detail,  but  reference  will  be  more  particularly 

"  Surety,  absent  from  jurisdiction,  not  necessary  party;  action  on 
bond:  Tally  v.  Ganahl  (Cal.  Sup.,  June  19,  1907),  90  Pac.  Rep.  1049. 

See  Tally  v.  Parsons,   131  Cal.   516,  63  Pac.  Rep.   833. 

Alaska.     Proper  parties:  Jorg-enson  Co.  v.  Sheldon,  2  Alas.  607,  610. 

Colorado.  All  persons  interested  should  be  made  parties  (Gen. 
Laws,  §1668):  San  Juan  etc.  Co.  v.  Finch,  6  Colo.  214;  Snodgrass  v. 
Holland,  6  Colo.  596;  but  only  lien-holders  and  owner  need  be  made 
parties:  Branham  v.  Nye,  9  Colo.  App.  19,  47  Pac.  Rep.  402.  See  San 
Juan  Hardware  Co.  v.  Carrothers,  7  Colo.  App.  413,  43  Pac.  Rep.  1053, 
explaining  Johnston  v.  Bennett,  6  Colo.  App.  362,  40  Pac.  Rep.  847.  But 
the  g-rantee  under  a  deed  of  trust  given  as  security  is  not  an  "  owner," 
within  the  meaning  of  Gen.  Stats.,  §  2152,  requiring  him  to  be  made  a 
party:  Cornell  v.  Conine-Eaton  L.  Co.,  9  Colo.  App.  225,  47  Pac.  Rep. 
912. 

Unnecessary  parties:  See  Branham  v.  Nye,  9  Colo.  App.  19,  47  Pac. 
Rep.  402;  Fleming  v.  Prudential  I.  Co.,  19  Colo.  App.  126,  73  Pac.  Rep. 
752. 

Hawaii.     Parties  defendant:   See  Allen  v.   Reist,   16   Hawn.   23,   24. 

Montana.  Those  parties  liable,  necessary  parties;  otherwise  judg- 
ment invalid:  Missoula  M.  Co.  v.  O'Donnell,  24  Mont.  65,  60  Pac.  Rep. 
594,  991;  Gilliam  v.  Black,  16  Mont.  217,  40  Pac.  Rep.  303;  Wagner  v. 
St.  Peter's  Hospital,  32  Mont.  206,  79  Pac.  Rep.  1054,  1055. 

Aevada.  Same  rules  as  on  foreclosure  of  mortgage  applicable: 
Rosina  v.  Trowbridge,  20  Nev.  105,  17  Pac.  Rep.  751. 

New  Mexico.  See  Post  v.  Miles,  7  N.  M.  317,  34  Pac.  Rep.  586. 
Minors  as  proper  and  necessary  parties:  Id. 

Oklahoma.  Contractor's  sureties  not  necessary  or  proper  parties  to 
foreclosure:  Ferguson  v.  Steplienson-Brown  L.  Co.,  14  Okl.  148,  77  Pac, 
Rep.  184,  186. 

Oregon.  Those  personallj*  liable,  necessary  parties:  Lewis  v.  Bee- 
man,  46  Oreg.  311,  80  Pac.  Rep.  417. 

Plaintiff  suing  on  behalf  of  claimants  in  action  on  bond:  See  United 
States  v.  McCann,  40  Oreg.  13,  66  Pac.  Rep.  274. 

AVashington.  Assignees  of  claimant  as  party:  See  Fairhaven  L.  Co. 
V.  Jordan,   5  Wash.   729,   735,  32  Pac.  Rep.   729. 

The  person  to  whom  the  material  was  furnished  and  his  wife,  and 
the  owner  of  the  building  and  his  wife,  and  tlie  mortgagee,  were 
proper  parties  defendant:  Rasmusson  v.  Liming  (Wash.,  Aug.  3,  1908), 
96  Pac.  Rep.  1044. 

But  wliere,  in  sucli  an  action  between  such  parties,  the  plaintiff 
demanded  a  personal  judgment  against  the  contractor,  whicli  should 
be  a  community  of  obligation  of  himself  and  wife,  and  also  asked 
that  a  lien  on  the  property  be  decreed  therefor  and  foreclosed,  held 
that  an  account  for  goods  sold  and  delivered  against  the  contractor 
and  his  wife  was  not  improperly  joined  with  the  cause  of  action 
against  the  owner  and  his  wife  and  the  mortgagee  to  establish  a 
lien:    Rasmusson   v.  Liming   (Wash.,  Aug.   3,   1908),  96  Pac.   Rep.   1044. 

Suing  surety  alone:  See  Pacific  P.  Co.  v.  United  States  F.  &  G.  Co., 
33  Wash.   47,   73   Pac.   Rep.   772. 

"=  See  Kerr's  Cyc.  Code  Civ.  Proc,  §§367  et  seq.,  and  notes. 


605  PARTIES.  §  G63 

directed  to  the  persons  whose  rights  are  usually  affected  by 
the  statute  under  discussion. 

§  663.  Same.  Owner.  In  an  action  by  a  subclaimant  to 
foreclose  a  lien  upon  the  property,  it  is  proper  to  join  the 
owner  and  the  original  contractor  as  parties  defendant. ^^ 
And  it  seems  that  the  owner  at  the  time  of  bringing  the 
suit  to  foreclose  the  lien  must  be  a  party  defendant ;  ^^  but 
a  mere  agent  is  not  a  proper  party.^^ 

"  Giant  Powder  Co.  v.  San  Diego  F.  Co.,  78  Cal.  193,  198,  20  Pac.  Rep. 
419. 

Colorailo.     Davis  v.  Mouat  L.  Co.,  2  Colo.  App.  381,  31  Pac.  Rep.  187. 

Oregon.  Osborn  v.  Logus,  28  Oreg.  302,  38  Pac.  Rep.  190,  42  Pac. 
Rep.  997. 

"  Corbett  v.  Chambers,  109  Cal.  178,  184,  41  Pac.  Rep.  873   (dictum). 

Receiver  as  party  defendant:  Pacific  R.  M.  Co.  v.  Bear  Valley  Irr. 
Co.,  120  Cal.  94,  95.  52  Pac.  Rep.  136,  65  Am.  St.  Rep.  158. 

Colorado.  Decker  v.  Myles,  4  Colo.  558  (1872);  Snodgrass  v.  Hol- 
land, 6  Colo.  596;  German  Nat.  Bank  v.  Elwood,  16  Colo.  244,  27  Pac. 
Rep.  705. 

Hawaii.  Owner  is  necessary  party:  Hopper  v.  Lincoln,  12  Hawn. 
352,  353.     See  Allen  v.  Lincoln,  12  Hawn.  356. 

Xevada.  Owner  of  legal  title:  Rosina  v.  Trowbridge,  20  Nev.  105,  17 
Pac.  Rep.  751. 

Oregon.  Osborn  v.  Logus,  28  Oreg.  302,  310,  38  Pac.  Rep.  190,  42  Pac. 
Rep.   997    (owner  an  Indispensable  party  —  dictum). 

AVasliington.  So  the  owners  of  a  leasehold  interest  at  the  time  of 
commencing  the  action  should  be  made  parties,  but  their  assignors 
need  not  be,  w^here  no  personal  judgment  is  sought  against  them: 
Harrington  v.  Miller,  4  Wash.  SOS,  Sll,  31  Pac.  Rep.  325. 

In  suit  to  foreolo.se  lien  upon  ooniniunity  property,  tlie  wife  is  a 
necessary  party:  Littell  Mfg.  Co.  v.  Miller,  3  Wash.  480,  28  Pac.  Rep. 
1035,  s.  c.  8  Wash.  566,  36  Pac.  Rep.  492,  which  states  that  the  former 
decision  held  "  that  the  suit  for  foreclosure  of  the  lien  could  not  be 
maintained  against  him  (the  husband),  for  the  reason  that  he  was  not 
the  sole  owner  of  the  property."  See  Turner  v.  Bellingham  Bay  L.  & 
Mfg.  Co.,  9  W'ash.  484,  37  Pac.  Rep.  674;  Sagmeister  v.  Foss,  4  Wash. 
320,  30  Pac.  Rep.  80,  744;  Collins  v.  Snoke,  9  Wash.  571,  38  Pac.  Rep. 
161;  Parsons  v.  Pearson,  9  W'ash.  48,  36  Pac.  Rep.  974.  But  see  Douthitt 
V.  MacCulsky,   11  Wash.  601,  606.  40  Pac.  Rep.   186. 

AVIves  of  partners  not  necessary  parties  to  an  action  to  foreclose  a 
lien  upon  the  partnership  real  estate,  sucli  property  being,  in  equity, 
a  fund  for  the  payment  ot  the  indebtedness  of  the  partnership,  tliey 
having  no  interest  in  the  property  which  could  be  asserted  in  a  court 
of  equity  against  the  rights  of  the  creditors  of  the  partnership,  within 
the  rule  of  Littell  Mfg.  Co.  v.  Miller,  supra:  Harrington  v.  Johnson 
10  Wash.  542,  39  Pac.  Rep.  141. 

Both  spouses  necessary  parties,  community  property:  Northwest  B. 
Co.  V.  Tacoma  S.  Co..  36  Wash.  :133.  78  Pac.  Rep.  996;  Peterson  v.  Dil- 
lon, 27  Wash.  78,  67  Pac.  Rep.  397;  Powell  v.  Nolan,  27  Wash.  318,  67 
Pac.  Rep.  712. 

»■"•  Hooper  v.  Flood.  54  Cal.   218.  220. 

See  "  Demurrer,"  gS  728  et  seq.,  post. 


§§  664, 665  MECHAXics'  liens.  606 

Grantee  of  mortgager  assuming  the  mortgage  debt  is  a 
proper  and  necessary  party  to  a  foreclosure  suit,  where  he 
agrees  to  pay  for  the  work,  and  a  personal  judgment  may  be 
entered  against  the  grantee  for  a  deficiency.^® 

§  664.  Same.  Employers.  Copartnerships.  All  the 
members  of  a  firm  of  employers  should  be  made  parties  de- 
fendant, even  where  the  name  of  the  particular  individual 
contracting  with  the  claimant  is  alone  set  forth  in  the  claim 
of  lien  which  is  filed  in  the  recorder's  office.^" 

Death  of  copartner.  But  where  two  tenants,  as  copart- 
ners, erect  a  building  upon  leased  land,  and  one  of  the  part- 
ners dies,  and  no  judgment  is  sought  against  the  estate  of 
the  deceased  partner,  the  executor  of  the  deceased  is  not  a 
proper  party,  as  the  surviving  partner  only  is  authorized  to 
defend  for  the  partnership  interest,  especially  where  the 
deceased  partner's  interest  has  already  been  assigned  before 
his  death  and  the  assignee  is  also  a  party  to  the  action.^® 

§  665.  Same.  Contractor.  The  contractor  is  a  proper 
party  in  an 'action  to  foreclose  a  lien  on  the  property  of  the 
owner;  ^''    but    there    seems    to    be    some    confusion    in    the 

"  San  Francisco  P.  Co.  v.  Fairfield,  134  Cal.  220,  222,  226,  66  Pac.  Rep. 
255. 

1'  McDonald  v.  Backus,  45  Cal.  262.  See  March  v.  McKoy,  56  Cal.  85, 
87,  where  it  was  held  that  in  an  action  to  foreclose  a  mechanic's  lien 
upon  personal  property  the  persons  having  a  joint  ownersliip  are 
necessary  parties. 

Corporation  .sued  as  copartner.ship:  See  Rousseau  v.  Hall,  55  Cal.  164. 

Xevada.     See  Rosina  v.  Trowbridge,  20  Nev.  105,  17  Pac.  Rep.  751. 

>*  West  Coast  L.  Co.  v.  Apfleld,  86  Cal.  335,  341,  24  Pac.  Rep.  993. 

"  Hooper  V.  Flood,  54  Cal.  218,  220;  Holmes  v.  Richet,  56  Cal.  307, 
311,  38  Am.  Rep.  54;  Yancy  v.  Morton,  94  Cal.  558,  560,  29  Pac.  Rep. 
1111;  W^ood  V.  Oakland  &  B.  R.  T.  Co.,  107  Cal.  500,  502,  40  Pac.  Rep. 
806.  See  Green  v.  Clifford,  94  Cal.  49,  52,  29  Pac.  Rep.  331;  McMenomy 
V.  White,  115  Cal.  339,  343,  47  Pac.  Rep.  109;  Davies-Henderson  L.  Co.  v. 
Gottschalk,  81  Cal.  641,  643,  22  Pac.  Rep.  860;  Southern  Cal.  L.  Co.  v. 
Schmitt,   74   Cal.   625,   626,   16   Pac.   Rep.    516. 

In  an  action  to  foreclose  a  mechanic's  lien,  by  a  subcontractor, 
where  the  original  contractors  are  partners,  it  is  not  necessary  to 
make  more  than  one  of  them  a  defendant;  but  if  the  owners  of  the 
property  wish  the  other  members  of  the  firm  to  be  made  defendants, 
the  court  may,  in  its  discretion,  have  them  brought  in,  if  they  are 
within  its  jurisdiction:  Barnes  v.  Colorado  Springs  &  C.  C.  D.  R.  Co. 
(Colo.),   94   Pac.   Rep.   570. 


607  PARTIES.  §  665 

authorities  as  to  whether  he  is  a  n"ecessary  part}'.-"  However, 
in   any  event,  the  contractor  is  not  a  necessary  party  to 

*>  It  has  been  held,  in  this  connection,  that  the  contractor  is  a 
necessary  party  to  the  full  and  complete  determination  of  the  matters 
in  controversy;  tlie  court  saying,  '*  We  have  no  doubt  from  the  provis- 
ions of  §§  1193,  1194,  and  1195,  that  it  was  the  intent  of  the  law-makers 
that,  in  an  action  to  enforce  a  lien  under  this  statute,  all  the  persona 
claiming-  liens  under  the  statute,  including-  the  contractor  and  owner, 
should  be  made  parties,  so  that  there  might  be  a  complete  determina- 
tion of  all  matters  in  controversy  between  the  material-men  and  other 
lien-holders,  the  owner,  and  the  contractor;  and  in  this  point  of  view 
the  contractor  is  a  necessary  party;  and  if  he  was  not  made  a  party, 
the  court  should  order  him  to  be  made  a  defendant,  that  there  might 
be  a  full  and  complete  determination  of  the  matters  in  controversy": 
Giant  P.  Co.  v.  San  Diego  F.  Co.,  78  Cal.  193,  200,  20  Pac.  Rep.  419.  See 
GrilBth  v.  Happerberger,  86  Cal.   605,  612,  614,  25  Pac.  Rep.  137,  487. 

In  Green  v.  Clifford,  94  Cal.  49,  52,  29  Pac.  Rep.  331,  it  was  said: 
"We  do  not  know  of  any  law  which  makes  the  contractor  a  necessary 
party,  so  far,  at  least,  as  the  rights  of  the  owner  of  the  building  are 
concerned;  and  the  contrary  was  substantially  decreed  in  Russ  L.  &  M. 
Co.   v.   Garrettson,   87   Cal.   589,   25   Pac.  Rep.   747." 

In  Yjincy  v.  Morton,  94  Cal.  558,  560,  29  Pac.  Rep.  1111,  it  was  said: 
"  Appellant  also  complains  that  the  contractors  were  not  joined  as  co- 
defendants.  While  they  were  proper  parties  to  the  action,  it  does  not 
appear  that  they  were  necessary  parties,  and  if  the  defendant  desired 
to  have  them  joined  as  co-defendants,  he  should  have  made  application 
to  the  court  for  such  an  order.  In  Russ  ijumber  Co.  v.  Garrettson.  87 
Cal.  596,  25  Pac.  Rep.  747,  this  court  declared:  'Lastly,  it  is  said  that 
there  i.s  no  judgment  against  the  parties  personally  liable,  and  that 
such  judgment  is  necessary  to  support  the  lien.  We  know  of  no  law 
or  decision  supporting  this  position.'  See  also  Green  v.  Clifford,  94 
Cal.  49,  29  Pac.  Rep.  331." 

In  the  above  eaaeti,  however,  the  earlier  case  of  Giant  P.  Co.  v.  San 
Diego  F.  Co.,  78  Cal.  193.  20  Pac.  Rep.  419.  was  not  noticed;  but  in  the 
subsequent  case  of  Wood  v.  Oakland  &  B.  R.  T.  Co.,  107  Cal.  500,  502,  40 
Pac.  Rep.  806,  in  discussing  this  question,  the  court  said:  "The  com- 
plaints proceed  upon  the  theory  and  allege  that  the  contract  between 
the  defendant  corporation,  the  owner  of  the  property,  and  the  original 
contractor  was  void  because  neither  the  contract  nor  a  svitticient 
memorandum  thereof  was  filed  with  the  county  recorder,  and  the  argu- 
ment of  appellant  is,  that,  taking  this  allegation  to  be  true,  there  is,  in 
legal  contemplation,  neither  a  contract  nor  an  original  contractor,  and 
the  laborer  or  material-man  has  the  right,  under  the  statute,  to  sue 
the  owner  of  the  building  directly  to  enforce  his  lien;  that,  in  such 
instance,  the  contractor  is  not  a  necessary  party  to  the  determination 
of  the  matters  involved  in  the  action,  and  that  making  him  a  defend- 
ant is  therefore  improper.  It  is  true  tliat,  under  the  facts  alleged, 
Ecker  (the  contractor)  was  not  a  necessary  party  to  the  action,  but  it 
does  not  follow  that  he  was  not  a  proper  party,  and,  if  he  was  either 
the  one  or  the  other,  the  demurrer  on  that  ground  was  correctly  over- 
ruled. While  plaintiffs  could  maintain  their  action  against  the  owner 
alone  to  enforce  their  liens,  the  contractor  with  whom  they  dealt  was 
alone  personally  lialile  to  them  for  any  deficiency  that  might  arise; 
and.  if  a  personal  judgment  against  the  contractor  was  for  any  reason 
desired,  it  was  proper  to  make  him  a  defendant.  Tlie  practice  has  in 
fact  been  commended  as  tending  to  avoid  a  multiplicity  of  actions: 
Giant  P.  Co.  v.  San  Diego  F.  Co.,  78  Cal.  193,  20  Pac.  Rep.  419." 


§§  666,  667  mechanics'  liens.  608 

actions  brought  by  the  owner's  claimants  to  foreclose  liens, 
where  the  subject-matter  thereof  was  furnished  or  done  after 
the  contractor  abandoned  the  contract.^^ 

§  666.  Same.  Subcontractor.  The  subcontractor  is  a 
proper  party  in  an  action  to  foreclose  a  lien  by  a  subclaimant 
with  whom  the  subcontractor  contracted,  even  where  the 
statutory  original  contract  is  void.^^ 

§  667.  Same.  Lien  claimants.  All  persons  claiming  liens 
are  proper  parties,  and  should  be  made  parties  defendant; 
for  it  is  manifest  that  if  each  material-man  or  person  per- 
forming labor  on  the  building  had  to  bring  separate  actions 

Colorailo.     Contractor  should  be  made  party:   Union  Pac.   R.   Co.   v. 

Davidson,  21  Colo.  93,  39  Pac.  Rep.  1095.  Contractor  is  a  necessary 
party:  Union  Pac.  R.  Co.  v.  Davidson,  21  Colo.  93,  39  Pac.  Rep.  1095; 
Charles  v.  Hallack  L.  Co.,  22  Colo.  283,  43  Pac.  Rep.  548;  Estey  v.  Hal- 
lack  L.  Co.,  4  Colo.  App.  165,  34  Pac.  Rep.  1113;  Davis  v.  Mouat  L.  Co., 
2  Colo.  App.  381,  31  Pac.  Rep.  187;  Sayre-Newton  L.  Co.  v.  Park,  4  Colo. 
App.  482,  36  Pac.  Rep.  445  (1889).  See  Hume  v.  Robinson,  23  Colo.  359, 
362.  47  Pac.  Rep.  271. 

aiontana.  Contractor  necessary  party:  Wagner  v.  St.  Peter's  Ho's- 
pital,  32  Mont.  206,  79  Pac.  Rep.  1054,  1055. 

But  where  the  contractor  is  not  made  a  party,  and  no  demurrer  is 
filed  therefor,  the  point  cannot  be  raised  for  the  first  time  on  appeal: 
Duig-nan  v.  Montana  Club,  16  Mont.  189,  40  Pac.  Rep.  294.  The  person 
with  whom  claimant  contracted  is  a  necessary  party:  Gilliam  v.  Black, 
16  Mont.  217,  40  Pac.  Rep.   303. 

Oregon.  Contractor  is  not  an  indispensable  party,  but  is  a  neces- 
sary or  proper  party:  Osborn  v.  Logus,  28  Oreg.  302,  38  Pac.  Rep.  190, 
42  Pac.  Rep.  997,  where  the  subject  is  fully  discussed  under  the  Ore- 
gon statute,  and  a  distinction  between  "  indispensable  "  and  "  neces- 
sary "  parties  dwelt  upon.  But  in  Hand  Mfg.  Co.  v.  Marks,  36  Oreg. 
523,  52  Pac.  Rep.  512,  and  Cooper  Mfg.  Co.  v.  Delahunt,  36  Oreg.  402,  51 
Pac.  Rep.  649,  it  was  held  that  "he  is  not  a  necessary  party  to  a  suit 
to  foreclose  a  mechanic's  lien,  unless  a  personal  decree  is  sought 
against  hiin  by  the  owner." 

Washington.  See  dissenting  opinion,  Tacoma  L.  &  Mfg.  Co.  v.  Wolff, 
7  Wash.  478,  35  Pac.  Rep.  115,  755  (the  contractor  may  be  a  proper 
party,  but  not  a  necessary  party,  to  the  foreclosure  suit).  But  see 
Maxon  v.  School  Dist.,  5  W'ash.  142,  31  Pac.  Rep.  462,  32  Pac.  Rep.  110 
(dissenting  opinion). 

-'  Green  v.  Clifford,  94  Cal.  49,  53,  29  Pac.  Rep.  331. 

Contractor  made  a  party  to  foreclo.se  lien:  San  Francisco  P.  Co.  v. 
Fairfield,  134  Cal.  220,  226,  66  Pac.  Rep.  255. 

Oregon.  Original  contractor  not  necessary  party  to  foreclosure, 
unless  personal  judgment  is  sought  against  him  by  owner:  Cooper  M. 
Co.  v.  Delaliunt,  36  Oreg.  402,  51  Pac.  Rep.  649. 

=2  Davies-Henderson  L...  Co.  v.  Gottschalk,  81  Cal.  641,  647,  22  Pac. 
Rep.  860. 


I 


609  PARTIES.  §  668 

for  the  recovery  of  his  money,  the   expense   of  litigation 
would  be  greatly  increased,  and  absorb  the  fiind.^^ 

§  668.  Same.  Holders  of  prior  interests  and  liens.  As 
in  the  case  of  a  suit  to  foreclose  a  mortgage,  all  persons 
interested  in  the  premises  prior  to  the  commencement  of  the 
suit  to  enforce  a  mechanic's  lien,  whether  purchasers,-*  heirs, 
devisees,  remainderinen,  reversioners,  or  encumbrancers,  such 
as  mortgagees,-^  must  be  made  parties,  otherwise  their 
rights   will  not   be   affected.^®    And   all   persons   acquiring 

"^  Giant  P.  Co.  v.  San  Diego  F.  Co.,  78  Cal.  193,  198,  200,  20  Pac.  Rep. 
419. 

Colorado.  Union  Pac.  R.  Co.  v.  Davidson,  21  Colo.  93,  39  Pac.  Rep. 
1095. 

Other  lien  claimants  necessary  parties:  Union  Pac.  R.  Co.  v.  David- 
son, 21  Colo.  93,  39  Pac.  Rep.  1095;  San  Juan  H.  Co.  v.  CarroUiers,  7 
Colo.  App.  413,  43  Pac.  Rep.  1053;  Branliam  v.  Nye,  9  Colo.  App.  19,  47 
Pac.  Rep.  402;  Fleming  v.  Prudential 'I.  Co.,  19  Colo.  App.  126.  73  Pac. 
Rep.    752. 

3Iontana.     See  Mason  v.  Germaine,  1  Mont.  263,  268   (1865). 

Nevada.  Donkey  v.  Wells,  16  Nev.  271,  277.  See  Elliott  v.  Ivers,  6 
Nev.  287,  290. 

Oregon.  "All  other  lien-holders  whose  claims  have  been  filed  shall 
be  made  parties":  Title  G.  &  T.  Co.  v.  W^enn,  35  Oreg.  62,  56  Pac.  Rep. 
271,  76  Am.  St.  Rep.  454. 

Lien-holders  as  parties:  Goodale  v.  Coffee,  24  Oreg.  346,  356,  33  Pac. 
Rep.  990. 

Washington.  Setting  out,  in  cross-complaint,  facts  showing  claim- 
ant to  be  necessary  party:  See  Powell  v.  Nolan,  27  Wash.  318,  67  Pac. 
Rep.  712.  717. 

-''  See  Montrose  v.  Conner,  8  Cal.  344,  347   (1855). 

Colorado.     Hart  v.  Mullen,  4  Colo.  512   (1872). 

Montana.  Purchaser,  on  foreclosure  of  mortgage,  party:  See 
McEwen  v.  Montana  P.  &  P.  Co.  (Mont.,  June  3,  1907),  90  Pac.  Rep. 
359.  361. 

-■5   Walker  v.  Hauss-Hijo,  1  Cal.  183,  186   (1850). 

See  "Priority,"  §§  486  et  seq.,  ante;  "Complaint,"  §§  670  et  seq.,  post. 

Oregon.  Persons  holding  liens  by  judgment  or  mortgage  are  not 
indispensable  parties:  Gaines  v.  Childers,  38  Oreg.  200,  63  Pac.  Rep.  487. 

-«  Whitney  v.  Higgins,  10  Cal.  547,  552,  70  Am.  Dec.  748. 

Parties  to  a  judgment  and  tiieir  privies  only  are  bound  thereby: 
■W'hitney  v.  Higgins,  supra.  See  Wakefield  v.  Van  Dorn,  53  Neb.  23,  25, 
73  N.  W^  Rep.  226. 

See  notes  77  Am.  Dec.  658;  81  Am.  Dec.  632;  82  Am.  Dec.  658;  31  Am. 
St.  Rep.  217;  36  Am.  St.  Rep.  574;  56  Am.  St.  Rep.  857. 

See  "  Estoppel,"  §§  816  et  seq.,  post. 

Colorado.  Ford  G.  M.  Co.  v.  Langford,  1  Colo.  62  (1864);  Bitter  v. 
Mouat  L.  &  I.  Co.,  10  Colo.  App.  307,  51  Pac.  Rep.  519  (deed  of  trust); 
Branham  v.  Nye,  9  Colo.  App.  19,  47  Pac.  Rep.  402. 

Nevada.  Rosina  v.  Trowbridge,  20  Nev.  105,  17  Pac.  Rep.  751  (ces- 
tuis  (|iio  trustent  proper  but  not  necessary  parties). 

Oklahoma.     Blan.shard  v.  Schwartz,  7  Okl.  23,  54  Pac.  Rep.  303. 
Mech.  Liens  —  39 


§  669  mechanics'  liens.  610 

title, -^  or  acquiring  interests,  as  by  mortgage,^^  or  other- 
wise,-^ subsequently  to  the  lien  sought  to  be  foreclosed,  and 
prior  to  the  commencement  of  the  action,  should  be  made 
parties  to  the  action.^*^ 

Mortgagees  made  parties  defendant  to  an  action  to  enforce 
a  lien  have  the  opportunity  to  present  whatever  interests,  as 
mortgagees,  may  be  imperiled,  and  have  whatever  protection 
the  law  gives. ^^ 

Where  infants  are  parties,  they  may  appear  by  their 
general  guardian,  and  the  appearance  of  the  general  guar- 
dian is  sufficient  to  give  the  court  jurisdiction  of  the  persons 
of  the  infants  defendants.^- 

§  669.  Same.  Interests  pendente  lite.  It  has  already 
been  seen  that  a  lis  pendens  need  not  be  filed  upon  the  fore- 
closure of  a  mechanic's  lien,^^  and  it  follows  as  a  necessary 
corollary  therefrom  that  persons  who  acquire  interests  by 

Oregon.  See  Osborn  v.  Logus,  28  Oreg.  302,  37  Pac.  Rep.  456,  38 
Pac.  Rep.  190,  42  Pac.  Rep.  997  (2  HiU's  Ann.  Laws,  §  3677,  construed, 
and  the  subject  fully  discussed). 

AVa.sliington.  See  Nason  v.  Northwestern  M.  Co.,  17  Wash.  142,  49 
Pac.  Rep.  235;  Douthltt  v.  MacCulsky,  11  Wash.  601,  40  Pac.  Rep.  186; 
Turner  v.  Bellingham  Bay  L.  &  Mfg-.  Co.,  9  Wash.  484,  37  Pac.  Rep.  674. 

Lessees  of  part  of  the  Imilding  should  be  made  parties:  Wright  v. 
Cowie,  5  Wash.  341,  31  Pac.  Rep.  878. 

Objection  for  non-joinder  waived,  unless  made  by  demurrer  or  an- 
swer: Harrington  v.  Miller,  4  Wash.  808,  810,  31  Pac.  Rep.  325. 

2'  Montrose  v.  Conner,   8  Cal.  344,  347    (1855). 

28  Gamble  v.  Voll,  15  Cal.  507,  510.  See  Gaines  v.  Childers,  38  Oreg. 
200,  203,  63  Pac.  Rep.  487. 

29  See  Donohoe  v.  Trinity  Consol.  G.  &  S.  M.  Co..  113  Cal.  119,  121,  45 
Pac.  Rep.  259. 

Colorado.  Trustee  and  cestui  que  trust:  Johnson  v.  Bennett,  6  Colo. 
App.  362,  40  Pac.  Rep.  847;  McClair  v.  Huddart,  6  Colo.  App.  493,  41 
Pac.  Rep.  832. 

Oregon.  Subsequent  lienor  not  necessary  party,  but  may  be  com- 
pelled to  redeem  or  be  barred:  Koerner  v.  Willamette  I.  W.,  36  Oreg. 
90,  58  Pac.  Rep.  863.  78  Am.  St.  Rep.  759. 

Lessee  as  party  defendant:  Lewis  v.  Beeman,  46  Oreg.  311,  80  Pac. 
Rep.  417. 

3"  Otlierwise  in  ease  of  mortgage;  decree  held  void:  Watts  v.  Gal- 
lagher, 97  Cal.  47,  50,  31  Pac.  Rep.  626;  Brackett  v.  Banegas,  116  Cal. 
278,  282,  48  Pac.  Rep.  90,  58  Am.  St.  Rep.  180. 

"  Ah  Louis  V.  Harwood,  140  Cal.  500,  505,  74  Pac.  Rep.  41. 

32  W'estern  L.  Co.  v.  Phillips,  94  Cal.  54,  55,  29  Pac.  Rep.  328. 

New  Mexico.  Minors  as  parties,  misjoinder:  See  Armijo  v.  Moun- 
tain E.  Co..  11  N.  M.  235;  67  Pac.  Rep.  726,  729. 

«  See  §  658,  ante. 


1 


611  PARTIES.  §  66S> 

conveyance  or  encumbrance  after  the  commencement  of  the 
action  need  not  be  made  parties  to  the  action,  as  their 
interests  will  be  bound  by  the  judgment.^* 

3«  Whitney  v.  Higgins.  10  Cal.  547,  70  Am.  Dec.  748.  In  Horn  v. 
Jones,  28  Cal.  194,  204,  it  was  held  that  persons  having-  no  interest 
in  the  property  at  the  time  the  action  was  commenced,  and  who  die 
pendente  lite  and  after  a  lis  pendens  has  been  filed,  need  not  be  made 
parties.  See  Sharp  v.  Lumley,  34  Cal.  611,  615;  Brady  v  Burke  90  Cal 
1,  27  Pac.  Rep.  52.     See  §  658,  ante. 

Colorado.     Cornell  v.  Conine-Eaton  L.  Co.,  9  Colo.  App.  225,  47  Pac. 
Rep.  912   (time  for  commencing  suit  having  expired). 


§  670  mechanics'  liens.  612 


CHAPTER   XXXV. 

COMPLAINT. 

§  670.  Complaint.     In  general. 

§  671.  Stating  cause  of  action. 

§  672.  General  rules  of  pleading  contract. 

§  673.  Same.     Common   counts. 

§  674.  Same.     Technical  defects  cured  by  acts  of  the  parties. 

§  675.  Same.     Express  contract. 

§  676.  Same.     Conditions  precedent. 

§  677.  Same.     Completion  of  building, 

§  678.  Same.     Certificate  of  architect. 

§  679.  Same.     Prevention  of  performance. 

§  680.  Same.     Debt   due. 

§  681.  Same.     Non-payment   of  indebtedness  to   plaintiff. 

§  682.  Same.     Premature  payment  to  contractor  by  owner. 

§  683.  Notice  to  owner. 

§  684.  Same.     Indebtedness  due  contractor  from  owner  at  time  of 

notice. 

§  685.  Same.     Complaint  by   subcontractor's  material-man. 

§  686.  Same.     Notice  to  contractor.     Action  against  fund. 

§  687.  Request  of  owner.     Subclaimant. 

§  688.  Contract  alleged  presumed  to  be  non-statutory. 

§  689.  Void  contract. 

§  690.  Same.     Agreed   price.     Value. 

§  691.  Same.     Request  of  owner. 

§  692.  Ownership. 

§  693.  Knowledge  of  improvement  by  owner. 

§  694.  Notice  of  non-responsibility. 

§  695.  Agency.     Authority   of    person    causing   improvement   to   be 

made. 

§  696.  Same.     Mining  claim. 

§  697.  Same.     Contractor  as  agent  of  owner. 

§  698.  Same.     Allegations    to    bind    contractor. 

§  699.  Materials. 

§  700.  Same.     Defect  in  complaint  waived. 

§  701.  Same.     Materials    furnished.     Dates. 

§  702.  Employment.     Death  of  owner. 

§  703.  Nature  of  labor. 

§  704.  Same.     Grading  and  other  work. 

§705.  Object  of  labor.     Well. 

§  706.  Claim  of  lien.     Time  of  filing. 


I 


613  COMPLAINT.  §  670 

§  707.  Same.     Statutory  completion   for  purpose  of  filing. 

§  708.  Same.     Alleging  contents  of  claim.     Generally. 

§  709.  Same.     Name  of   owner. 

§  710.  Same.  Description  of  property  to  be  charged  with  the 
lien. 

§  711.  Same.     Claim  of  lien  as  exhibit  to  complaint. 

§  712.  Same.     Terms,  time  given,  and  conditions  of  contract. 

§  713.  Same.  Variance  between  claim  as  an  exhibit  and  allega- 
tions of  complaint. 

§  714.  Same.     Unnecessary  statements  in  claim  as  an  exhibit. 

§  715.  Other   interests.     For   what   purpose  alleged. 

§  716.  Same.     Alleging  no  other  claim  upon  fund. 

§  717.  Description   of   property. 

§  718.  Same.     Land  for  convenient  use  and  occupation. 

§  719.  Same.     Description  of  whole  or  part  of  building. 

§  720.  Same.     Description  in   claim  of  lien   referred  to. 

§  721.  Damages. 

§  722.  Verification  of  complaint. 

§  723.  Joinder  of  causes  of  action  in  complaint. 

§  724.  Same.     Designating   causes   of  action   separately. 

§  725.  Same.     Reference  from  one   cause  of  action   to  another. 

§  726.  Same.     Actions  that  may  be  united   in   one  complaint. 

§  727.  Same.     Objections,   how   raised. 

§  670.  Complaint.  In  general.^  In  this  portion  of  the 
work,   treating   of   pleading   and   practice,   the   anthor   will 

^  Complaint  for  broaoli  of  ooiitract  to  construct  specific  iiiiprove- 
ment.s:    See  Bryant  v.  Broadwell,  140  Cal.  400.  494.   74  Pac.  Rep.  33. 

.lotion  to  foreclose  nieohanie's  lien.  Coiiipluint.  Siibxtautial  com- 
pliunee  with  statute.  The  right  to  a  meclianic's  lien  is  purely  a 
creature  of  the  statute,  and  In  order  to  sustain  an  action  to  foreclose 
such  lien,  it  is  essential  that  the  complaint  shall  show  a  substantial 
compliance  with  the  requirements  thereof:  Davis  v.  Treacy  (Cal.  App., 
1908),   7  Cal.  App.   Dec.   5. 

A  complaint  which  fails  to  aver  what  tlie  claim  of  lien  filed  in  the 
office  of  the  county  recorder  contained,  other  than  a  description  of 
the  property  sought  to  be  charged,  does  not  set  forth  a  cause  of 
action:    Davis  v.  Treacy,  supra. 

.\vernients  of  eoiiiplnint  by  an  architect,  held  insufficient  to  show  a 
right  of  recovery  of  a  percentage  on  the  cost  of  a  building,  but  suf- 
ficient to  sustain  damages  recoverable  for  breach  of  contract:  See 
Fitzhugh  V.  Mason,  2  Cal.  App.  220,   22."),  83  Pac.  Rep.   282. 

Complaint  in  action  by  a  builder  and  architect;  G  Cyc.  51. 

Complaint  in  an  action  to  recover  compensation  due  to  builder:  6 
Cyc.    92. 

Failure  of  record  to  show  service  of  amended  complaint  on  default 
Judgment:  See  Heinlen  v.  Erlanger  (Cal.,  .Ian.  29,  1884),  3  Pac.  Rep. 
129. 

Filing  of  amended  complaint  ^vitlioiit  service  of  copy-  Discretion 
Is  not  abused   by   denying  a   motion    to   strike  an   amended   complaint 


§  671  mechanics'  liens.  614 

confine  himself  to  stating  the  rules  that  have  been  laid  down 
by  the  courts  under  the  statutes  then  in  force,  leaving  the 
investigator  to  search  in  the  preceding  part  of  the  book  for 
the  reasons  governing  such  rules,  and  their  present  status. 

The  general  principles  of  pleading  are  applicable  to  actions 
to  foreclose  mechanics'  liens,  except  as  otherwise  provided 
in  the  chapter  of  the  Code  of  Civil  Procedure  -  on  mechanics' 
liens.^  But  it  is  not  intended  here  to  enter  upon  the  subject 
of  pleadings  in  general,*  and  the  title  will  be  treated  only  so 
far  as  the  rules  are  peculiar  to  or  serve  to  illustrate  the 
mechanic's-lien  law. 

§  671.  Stating  cause  of  action.  The  facts  necessary  to 
constitute  a  cause  of  action,  or  to  show  the  existence  of  the 
lien,  whether  upon  the  property  or  the  fund,  must,  of  course, 
be  stated,  in  an  action  to  foreclose  a  lien,'^  as  in  the  case  of  all 

from  the  flies,  on  the  ground  that  no  copy  thereof  had  been  served 
upon  the  adverse  party  within  time,  where  a  copy  is  served  before 
the  filing-  of  the  motion:  Klokke  v.  Raphael,  6  Cal.  App,  Dec.  508, 
96   Pac.    Rep.    392. 

Alaska.     Complaint:  Jorgenson  Co.  v.  Sheldon,  2  Alas.  607,  609. 

Arizona.  Action  by  architect,  breach  of  contract,  allegation  of 
non-payment:  See  McPherson  v.  Hattich  (Ariz.,  March  30,  1906),  85 
Pac.  Rep.  731. 

Colorado.  Pleading  assignment:  Hanna  v.  Savings  Bank,  3  Colo. 
App.  28,  31  Pac.  Rep.  1020. 

See    "  Cumulative    Remedies,"    §  638. 

Idaho.  Complaint  for  railroad  construction:  See  Lewis  v.  Utah 
Const.  Co.,  10  Idaho  214,  77  Pac.  Rep.  336. 

Washin^on.  Action  by  original  contractor  against  surety  of  sub- 
contractor; supplemental  complaint:  See  Pacific  B.  Co.  v.  United  States 
F.  &  G.  Co..  33  Wash.  47,  73  Pac.  Rep.  772. 

»  Kerr's    Cyc.    Code    Civ.    Proc,    §§1183-120 3a. 

Estoppel  by  deed  or  iiiatler  of  record  must  be  pleaded  as  such,  when 
there  is  an  opportunity  to  plead  it:  Flandreau  v.   Downey,   23  Cal.  354. 

See  "  Estoppel,"  §§  816  et  seq.,  post,  and  §§  469  et  seq.,  ante. 

3  Kerr's  Cyc.  Code  Civ.  Proc,  §  1198. 

See  Green  v.  Palmer,  15  Cal.  412,  76  Am.  Dec.  492. 

*  See  Kerr's  Cyc.  Code  Civ.  Proc,  §§  420  et  seq.,  and  notes. 

"  O'Connor  v.  Dingley,  26  Cal.  11,  21;  Weithoff  v.  Murray,  76  Cal. 
608,  510,  18  Pac.  Rep.  435;  Corbett  v.  Chambers,  109  Cal.  178,  183,  41  Pac. 
Rep.  873.  See  Green  v.  Palmer.  15  Cal.  412,  415,  76  Am.  Dec.  492; 
Jerome  v.  Stebbins,  14  Cal.  457,  459. 

See  "  Demurrer,"  §§  728  et  seq.,  post. 

Gist  of  action  to  foreclose  mechanic's  lien  for  money  due  upon 
the  building  contract  Is  the  breach  of  the  contract;  and  unless  there 
Is  an  allegation  of  non-payment,  the  complaint  is  demurrable:  Burke 
V.   Dittus   (Cal.   App.),   96  Pac.   Rep.   330. 

Colorado.  See  Mouat  L.  Co.  v.  Freeman,  7  Colo.  App.  152,  42  Pac. 
Rep.  1040  (facts  necessary  to  creation  of  lien  must  be  set  forth, 
whether  it  appears  in  the  statement  or  not).     See  San  Juan  H.  Co.  v. 


615  COMPLMNT.  §  671 

other  actions.  The  reader  must  bear  constantly  in  mind  that 
the  allegations  which  may  be  necessary  in  an  action  by  one 
of  the  persons,  whose  rights  are  herein  treated,  against  an- 
other, may  be  entirely  different  from  those  required  in  an 
action  between  others.  The  preceding  portions  of  this  worli 
should  be  consulted  to  determine  what  allegations,  in  any 
particular  case,  may  be  necessary. 

As  a  general  rule,  the  plaintiff  must  recover,  if  at  all,  upon 
the  cause  of  action  set  out  in  the  complaint,  and  not  upon 
some  other  cause  of  action,  nor  upon  essential  facts  which 
were  omitted,  and  which  may  be  developed  by  the  proofs." 
But  a  complaint  which  states  a  good  cause  of  action  for  the 
recovery  of  money  or  for  a  personal  judgment  is  not  de- 
murrable as  not  stating  sufficient  facts  to  constitute  a  cause 
of  action,  because  there  is  an  ineffectual  effort  to  state  in  the 
complaint  another  cause  of  action  for  the  foreclosure  of  a 
lien  to  secure  the  same  money.'' 

Carrothers,  7  Colo.  App.  413,  43  Pac.  Rep.  1053;  Arkansas  River  L.  R.  & 
C.  Co.  V.  Flinn,  3  Colo.  App.  381,  33  Pac.  Rep.  1006.  Leave  to  sue  re- 
ceiver: Colorado  Fuel  &  I.  Co.  v.  Rio  Grande  S.  R.  Co.,  8  Colo.  App. 
493,  46  Pac.  Rep.  845. 

Montana.  Statutory  steps,  under  §  2131  of  tlie  Code  of  Civil  Pro- 
cedure, to  be  treated  as  jurisdictional:  See  McGlauflin  v,  Wormser,  28 
Mont.  177,   72  Pac.   Rep.   428. 

Nevada.  Under  act  of  1875,  no  pleading  by  interveners  was  re- 
quired: Hunter  v.  Truckee  Lodge,  14  Nev.  24,  31.  See  Skyrme  v.  Occi- 
dental M.  Co.,  8  Nev.  219. 

Oregon.     Wilcox  v.  Keitli,  3  Oreg.  372. 

«  Reed  v.  Norton,  99  Cal.  617,  619,  34  Pac.  Rep.  333;  Mondran  v.  Goux. 
51  Cal.  151;  Hicks  v.  Murray,  43  Cal.  515,  522. 

But  see  §  700,  post. 

Lack  of  es.sential  averment  in  complaint  aided  by  ans^ver  in  crosH- 
complaint:  See  Donegan  v.  Houston  (Cal.  App.,  May  28,  1907),  90  Pac. 
Rep.  1073. 

Complaint  stating:  cause  o£  action  for  personal  jndiu:ment,  where  in- 
sufficient on  foreclosure  of  lien,  owing  to  unauthorized  contract  of 
executor:  See  San  Francisco  P.  Co.  v.  Fairfield,  134  Gal.  220,  66  Pac. 
Rep.  255,  256. 

Idabo.  Sufficient  allegation  on  foreclosure  of  laborer's  lien:  See 
Robertson  v.  Moore,   10  Idaho   115,  77  Pac.  Rep.   218. 

Washington.  Complaint  stating  cause  of  action;  irrigation-ditch; 
Instalment  payment  from  sale  of  bonds:  See  Dyer  v.  Middle  Kittitas 
Irr.  Dist.,  25  Wash.  80,  64  Pac.  Rep.  1009,  40  Wash.  238,  82  Pac.  Rep.  301. 

'  Cox  v.  Western  Pac.  R.  Co.,  47  Cal.  87,  90. 

Colorado.  Complaint  for  labor  performed  for  lessees  of  mining 
property,  not  stating  cause  of  action  for  personal  judgment,  nor  decree 
of  foreclosure  against  owner:  See  Schweizer  v.  Mansfield,  14  Colo.  App. 
236,  59  Pac.  Rep.  843;  Wilkins  v.  Abell,  26  Colo.  462,  58  Pac.  Rep.  612. 

AVasliington.  Complaint  held  good  for  enforcement  of  a  lien  or  for 
general  recovery:  See  Lee  v.  Kimball  (Wash.,  March  12,  1907),  88  Pac 
Rep.  1121  (weU). 


§  672  mechanics'  liens.  616 

§  672.  General  rules  of  pleading  contract.  "  Under  the 
system  of  pleading  at  common  law,  it  was  the  general  rule 
that  a  party  to  a  special  contract,  who  had  performed  his 
part  of  it,  and  nothing  remained  to  be  performed  under  the 
contract  but  the  payment  of  the  money,  could  maintain  gen- 
eral assumpsit  to  recover  the  amount  due  him  on  the  con- 
tract. It  was  also  a  general  rule  that  while  the  special  con- 
tract remains  open  and  unrescinded,.  the  party  whose  part 
of  it  is  unperformed,  in  any  respect,  cannot  sue  in  general 
assumpsit,  but  must  sue  in  special  assumpsit  on  the  contract. 

"  To  the  latter  rule  there  were  several  exceptions,  and 
among  them  was  the  case  where  the  special  contract  has  been 
deviated  from  or  modified  by  common  consent  and  the  ser- 
vice has  been  performed :  the  party  claiming  compensation 
for  his  services  must  sue  in  general  assumpsit.  The  supreme 
court,  in  De  Boom  v.  Priestly,'^  affirmed  the  doctrine  of  the 
exception  just  stated,  and  that  case  was  followed  by  Rey- 
nolds V.  Jourdan,^  and  Adams  v.  Pugh,^"  .  .  .  [The  plain- 
tifif]  can  allege  the  execution  of  the  contract,  its  terms,  and 
subsequent  modification  or  deviation  made  by  agreement  or 
consent  of  the  parties,  the  performance  of  his  part  of  the 
contract  as  altered  or  affected  by  the  modifications  or  de- 
viations, the  non-performance  by  the  other  party  of  his 
part  of  the  contract,  and  the  damages  thereby  sustained  by 
the  plaintiff.  All  the  cases  hold  that  in  an  action  brought 
in  general  assumpsit,  in  consequence  of  a  deviation  from  the 
terms  of  the  contract  made  by  consent  of  the  parties,  the 
plaintiff  may,  and  should,  introduce  in  evidence  the  contract, 
and  if  it  has  not  been  wiiolly  lost  sight  of  in  the  services  as 
performed,  the  rates  and  terms  of  compensation  fixed  in  the 
contract  will  be  the  measure  of  damages,  so  far  as  the  same 
can  be  traced  in  the  performance.  He  must,  of  course, 
prove  the  performance  of  all  his  part  of  the  contract,  except 
so  far  as  the  same  has  been  deviated  from  by  consent.  The 
contract,  therefore,  does  constitute  the  basis  of  the  action, 
and  if  there  is  any  meaning  in  the  rule  that  the  evidence 
offered  must  correspond  with  the  allegations,  there  can  be  no 

«  1  Cal.  206. 
»  6  Cal.  108. 
»  7  Cal.   150. 


G17  COMPLAINT.  §  673 

question  that,  according  to  the  rules  of  the  Practice  Act  re- 
quiring tl.e  facts  to  be  stated,  the  contract  should  be  set  forth 
in  the  complaint,  together  with  the  necessary  allegations 
of  deviations,^'^  performance,  etc.,  which  the  plaintiff  must 
prove,  instead  of  the  general  allegation  that  the  defendant 
is  indebted  to  the  plaintiff  for  work  and  labor,  etc.^-  .  .  , 
Mr.  Chief  Justice  Bronson  says :  ^^  '  When  goods  are  sold  to 
be  paid  for  by  a  note  or  bill  payable  at  a  future  day,  and  the 
note  or  bill  is  not  given,  the  vendor  cannot  maintain  as- 
sumpsit on  the  general  count  for  goods  sold  and  delivered, 
until  the  credit  has  expired,  but  he  can  sue  immediately  for 
a  breach  of  the  special  agreement.'  "  ^* 

§  673.  Same.  Common  counts.  In  discussing  the  gen- 
eral rules  laid  down  in  the  preceding  section,  the  court  has 
said :  "  The  rules  of  pleading  in  regard  to  the  employment 
of  the  common  counts  in  actions  on  contracts  are  well  stated 
by  Professor  Greenleaf,  in  the  second  volume  of  his  work 
on  Evidence, ^^  as  follows :  '  The  law  on  this  subject  may  be 
reduced  to  three  general  rules : 

"  •  1.  So  long  as  the  contract  continues  executory,  the 
plaintiff  must  declare  specially;  but  when  it  has  been  exe- 
cuted on  his  part,  and  nothing  remains  but  the  payment  of 
the  price  in  money  b}'  the  defendant,  which  is  nothing  more 
than  the  law  would  imply  against  him,  the  plaintiff'  may  de- 
clare generally,  using  the  common  counts,  or  may  declare 
specially  on  the  original  contract,  at  his  election.  If  the 
mode  of  payment  was  any  other  tlian  in  money,  the  count 
must  be  on  the  original  contract.  And  if  it  was  to  be  in 
money,  and  a  term  of  credit  was  allowed,  the  action,  though 

"  Citins  White  v.  Soto.  82  Cal.  654.  657,  23  Pac.  Rep.  210;  Daley  v. 
Russ,  86  Cal.  114,  116,  24  Pac.  Rep.  867.  See  Barllari  v.  Ferrea.  59  Cal. 
1.  4. 

'=  Citing  Green  v.  Palmer,  15  Cal.  412.  76  Am.  Dec.  492;  Jerome  v. 
Stebbins.  14  Cal.  457. 

"  Citing  Hanna  v.  Mills,  21  Wend.  90. 

"  O'Connor  v.  Dingley,  26  Cal.  11,  20,  23.  See  Kalkmann  v.  Baylls,  17 
Cal.    291. 

Arizona.  Pleading  oral  additions  to  written  contract:  See  O'Connor 
V.  Adams,  6  Ariz.  404.  59  Pac.  Kep.  105. 

Hawaii.  Alleging  express  or  implied  contract:  See  Holmes  v.  Mello, 
15  Hawn.   72.   75. 

"  §  104. 


§  673  mechanics'  liens.  618 

on  the  common  counts,  must  not  be  brought  until  the  term 
of  credit  has  expired.  This  election  to  sue  upon  the  conunon 
counts,  where  there  is  a  special  agreement,  applies  only  to 
cases  where  the  contract  has  been  fully  performed  by  the 
plaintiff. 

" '  2.  Where  the  contract,  though  partly  performed,  has 
been  either  abandoned  by  mutual  consent,  or  rescinded  and 
extinct  by  some  act  on  the  part  of  the  defendant.  Here 
the  plaintiff  may  resort  to  the  common  counts  alone  for 
remuneration  for  what  he  has  done  under  the  special  agree- 
ment. But,  in  order  to  do  this,  it  is  not  enough  to  prove 
that  the  plaintiff  was  hindered  by  the  defendant  from  per- 
forming the  contract  on  his  part ;  for  we  have  just  seen  that 
in  such  case  he  must  sue  upon  the  agreement  itself.  It  must 
appear  from  the  circumstances  that  he  was  at  liberty  to 
treat  it  as  at  an  end. 

"  '  3.  Where  it  appears  that  what  was  done  by  the  plain- 
tiff was  done  under  a  special  agreement,  but  not  in  the  stipu- 
lated time  or  manner,  and  yet  was  beneficial  to  the  defend- 
ant, and  has  been  accepted  and  enjoyed  by  him.  Here  the 
plaintiff  cannot  recover  upon  the  contract  from  which  he  has 
departed,  yet  he  may  recover  upon  the  common  counts  for 
the  reasonable  value  of  the  benefit  which,  upon  the  whole, 
the  defendant  has  derived  from  what  he  has  done.'  "  " 

This  last  general  rule  or  subdivision  seems  to  be  modified 
somewhat  by  the  more  recent  decisions,  which  allow  the 
plaintiff  to  sue  in  an  action  to  foreclose  the  lien  upon  the 
express  contract,  where  the  imperfections  are  trifling,  or 
there  is  a  substantial  performance  of  the  express  original 
contract.^^ 

"  Castagnino  v.  Balletta,  82  Cal.  250,  258,  23  Pac.  Rep.  127. 

"  See  "  Performance,"  §§  334  et  seq.,  ante. 

Colorado.  See  Charles  v.  HaUack  L.  Co.,  22  Colo.  283,  43  Pac.  Rep. 
B48;  McGonigle  v.  Klein,  6  Colo.  App.  306,  40  Pac.  Rep.  465.  But  see 
Walling  V.  Warren,  2  Colo.  434. 

Ileeovery  on  a  quantum  meruit  in  an  action  on  one  account  for  tlie 
total  sum  due:  See  Donegan  v.  Houston  (Cal.  App.,  May  28,  1907),  90 
Pac.  Rep.  1073. 

Montana.  Contractor  abandoning  work  on  a  whole  contract  cannot 
recover  on  quantum  meruit:  See  Riddell .v.  Peck- Williamson  H.  &  V. 
Co.,  27  Mont.  44,  69  Pac.  Rep.  241. 


619  coMPLxUNT.  §§  674, 675 

§  674.  Same.  Technical  defects  cured  by  acts  of  the 
parties.  An  action  in  indebitatus  assumpsit  lies  to  recover 
a  balance  for  work  and  labor  done  and  materials  furnished, 
where  the  express  special  contract  was  substantially  com- 
plied with  by  plaintiff,  and  where  every  technical  failure  of 
the  plaintiff  to  comply  with  its  strict  letter  was  cured  by  the 
acts  and  consent  of  the  parties.^* 

§  675.  Same.  Express  contract.  If  there  is  no  special 
contract,  none  should  be  pleaded.^®  The  express  contract 
may  be  declared  upon  in  htec  verba,-"  or  in  substance,  and 
according  to  its  legal  effect.  When  the  plaintiff  in  an  action 
to  foreclose  a  mechanic's  lien  alleges  that  a  written  contract 
was  made  between  him  and  the  defendant  for  the  erection 
of  a  building  upon  which  the  lien  is  claimed,  and  that  sub- 
sequently, by  their  oral  agreement,  it  was  modified,  and  sets 
forth  clearly  and  with  certainty  what  the  contract  as  modi- 
fied was,  according  to  its  legal  effect,  and  alleges  that  it  was 
executed  on  the  part  of  plaintiff,  the  contract  is  not  subject 
to  defendant's  demurrer  on  the  ground  of  ambiguity,  uncer- 
tainty, or  unintelligibility.^^ 

"  Griffith  v.  Happersberger,  86  Cal.  605,  613,  25  Pac.  Rep.  137,  487. 

"  Ehlers  v.  Wannaclt,  118  Cal.  310,  313,  50  Pac.  Rep.  433. 

^  See  Rauer  v.  Fay,  110  Cal.  361,  42  Pac.  Rep.  902. 

W^'ashington.  Defendant  not  misled;  motion  denied  to  set  out  con- 
tract in  complaint;  substance  of  contract  set  out:  See  Ekstrand  v. 
Barth,  41  Wash.  321,  83  Pac.  Rep.  305. 

-'■  White  V.  Soto,  82  Cal.  654,  657,  23  Pac.  Rep.   210. 

\VIiere  complaint  alleged  inateriaLs  to  have  been  furnished  on  the 
1st  of  July,  and  the  claim  of  lien  stated  that  the  materials  were  fur- 
nished "  on  or  about "  July  1st,  the  plaintiff  will  be  limited  to  the 
allegations  of  the  complaint,  and  he  cannot  recover  for  materials  fur- 
nished before  July  1st:  Santa  Monica  L.  &  M.  Co.  v.  Hege  (Cal.),  48 
Pac.  Rep.  69;  see,  on  rehearing,  119  Cal.  376,  51  Pac.  Rep.  555. 

As  to  whether  or  not  It  Is  nece.s»ary  to  allege  date  of  contract,  see 
California  P.  W.  v.  Blue  Tent  Cons.  Co.  (Cal.,  Oct.  8,  1889),  22  Pac.  Rep. 
891. 

In  case  of  an  assiennient,  it  Is  not  necessary  to  allege  that  the  as- 
signment was  in  writing:  Patent  B.  Co.  v.  Moore,  75  Cal.  205,  211,  16 
Pac.   Rep.   890. 

As  to  ^vhetlier  or  not  it  im  ueee.M.sary  to  allege  tiiat  tlie  .Hlutiitory 
orlglnal  contract  was  In  writing,  see  Barber  v.  Reynolds,  33  Cal.  497, 
502   (the  original  contract  was  void). 

Montana.  It  is  not  necessary  to  allege  the  name  of  the  contract, 
1.  e.,  wliether  it  was  express  or  implied;  when  facts  amounting  to  a 
contract  are  stated,  the  law  names  it:  Nolan  v.  Lovelock,  1  Mont.  224. 


§§  676, 677  mechanics'  liexs.  620 

§  676.  Same.  Conditions  precedent.  Conditions  pre- 
cedent in  the  contract  must  be  alleged  to  have  been  per- 
formed," or  an  excuse  alleged  for  non-performance.  Thus 
when  payments  are  due  upon  the  performance  of  portions  of 
the  work,  based  upon  estimates  of  the  engineer,  the  plaintiff 
must  allege  the  making  of  such  estimates,  or  a  legal  excuse 
why  they  were  not  made.-^ 

§  677.  Same.  Completion  of  building.  But  it  seems  that 
it  is  not  necessary,  generally,  for  a  subclaimant  to  allege  the 
completion  of  the  building,  except  as  it  may  be  necessary  to 
show  that  the  claim  of  lien  was  filed  in  time;  for  instance, 
within  thirty  days  from  the  date  of  the  completion  of  the 
structure.-^  An  allegation  in  the  complaint,  as  to  the  com- 
pletion of  a  building,  applies  to  all  its  parts,  including  ex- 
cavations necessary  to  its  construction,  as  contemplated  by 
the  contract.-^ 

22  So  In  an  action  by  the  owner  against  the  contractor,  where  the 
contract  provided  that  the  contractor  should  pay  aU  bills  against  the 
house,  or  litigate  the  same  before  paying  them  if  he  deemed  them 
unjust,  it  is  not  sufficient  to  merely  allege  that  the  defendant  failed 
to  pay  them;  and  where  the  contract  provided  that  the  defendant  was 
to  pay  only  such  bills  as  the  plaintiff  had  not  made  himself  personally 
liable  for,  the  complaint  must  allege  that  plaintiff  had  not  made  him- 
self so  liable:  Fisher  v.  Pearson,  48  Cal.  473. 

Arbitration  as  condition  precedent.  Where  it  is  provided,  in  a 
contract  for  the  construction  of  a  building,  that  if  any  dispute  shall 
arise,  it  shall  be  referred  to  arbitration,  such  reference  is  a  condition 
precedent  to  the  right  to  maintain  an  action:  Burke  v.  Dittus,  6  Cal. 
App.   Dec.   638,   96   Pac.   Rep.   330. 

A.S  to  averment  of  performance  of  conditions  precedent,  see  Kerr's 
Cyc.  Civ.  Code,  §  1439,  note  pars.  35-45. 

Colorado.  Allegation  that  plaintiff  did  all  the  work  he  was  re- 
quired to  do  by  defendants,  not  an  allegation  of  performance  of  work: 
See  Griffin  v.  Seymour,  15  Colo.  App.  487,  63  Pac.  Rep.  809,  810. 

\Va.<t)hington.  An  allegation  that  materials  were  received  and  used 
by  defendant  amounts  to  an  allegation  of  defendant's  satisfaction 
therewitli,  within  the  meaning  of  the  contract:  Childs  L.  &  Mfg.  Co.  v. 
Page,  28  W^ash.  128,  68  Pac.  Rep.  373. 

23  Cox  V.  McLaughlin,  63  Cal.  196,  207;  Loup  v.  California  Southern  R. 
Co.,  63  Cal.  97,  101. 

See  "Performance,"   §§334  et  seq.,  ante:   "Evidence,"  §§789   et  seq.,  ^ 
post. 

=*  Wood  V.  Oakland  &  B.  R.  T.  Co.,  107  Cal.  500,  503,  40  Pac.  Rep.  806. 

Oregon.  But  the  time  when  the  building  was  commenced  should  be 
averred,  so  that  it  may  be  determined  at  what  time  the  lien  attached: 
Kendall  v.  McFarland,  4  Oreg.  293. 

="  iVlacomber  v.  BigeloW,  126  Cal.  9,  12,  58  Pac.  Rep.  312. 


I 


621  COMPLAINT.  §§  678, 679 

v^  678.  Same.  Certificate  of  architect.  It  is  not  necessary 
that  plaintiff  should  plead  an  excuse  tor  not  obtaining  a  final 
certificate  of  the  architect,  but  he  can  show  his  right  thereto, 
and  that  it  was  wrongfully  Avithheld.  under  an  averment  of 
performance  of  the  contract,  especially  where  no  objection 
was  made  at  the  trial  to  evidence  of  the  inexcusable  and 
arbitrary  withholding  of  the  certificate  by  the  architect  as 
not  warranted  by  the  pleadings.-"  Where  the  complaint 
states  that  the  original  contract  was  fully  performed  by  the 
contractor,  and  contains  a  copy  of  the  contract  as  an  exhibit, 
and  the  contractor  sues  for  the  balance  due  thereon,  and 
to  establish  a  lien  therefor,  if  the  complaint  contains  no 
allegation  that  the  work  was  done  to  the  satisfaction  of  the 
architect,  or  that  the  architect  gave  a  certificate,  as  required 
by  the  contract,  and  there  is  no  special  demutrer  therefor 
the  objection  will  be  held  waived.-' 

§  679.  Same.  Provention  of  performance.  But  an  alle- 
gation of  non-payment  is  not  an  allegation  of  prevention  of 
performance  of  the  contract,  in  which  the  defendant  agreed 
to  pay  certain  instalments.-'  And  where  the  plaintiff  alleges 
that  he  was  prevented  from  completing  the  contract  by  the 
defendants,  it  is  good  as  against  a  general  dennirrer,  if  it  does 
not  show  how  or  by  what  means  the  plaintiff  was  so  pre- 
vented.-^ 

=«  "U'yman  v.  Hooker,  2  Cal.  App.  36,  41,  83  Pac.  Rep.  79. 

AUe^iuj;  excuse  f«r  not  KeeiiriuK  oertifieate  as  ooudition  precedent: 

See  Tally  v.  Parsons,   131  Cal.  516,  520,   G3  Pac.   Rep.  83o. 

Montana.  The  contractor's  complaint  to  foreclose  his  nen  must 
state  that  the  certificate  of  the  architect  required  by  contract  "  was 
g-iven  or  demanded,  and  if  refused,  the  reasons  why  it  should  have 
been  given,  or  if  waived,  a  statement  of  that  fact":  See  McGlauflin  v. 
Wormser,  28  Mont.  177,  72  Pac.  Rep.  428. 

Ore;;on.  Excuse  for  failure  to  obtain  certificate  of  architect  should 
be  averred,  as  a  condition  precedent  to  recover:  Vanderhoof  v.  Shell, 
42  Greg-.  578.  72  Pac.  Rep.  126,  129. 

"  Wyman  v.  Hooker,  2  Cal.  App.  36,  38,  83  Pac.  Rep.  79. 

\%'aNliinKton,  Allegation  of  acceptance  of  work,  held  sufficient,  as 
an  allegation  that  work  was  performed  to  satisfaction  of  mine  super- 
intendent, as  required  by  contract:  See  Lang  v.  Crescent  C.  Co,  (Wash. 
Nov.  1.  1906),  87  Pac.  Rep.  261. 

^  Cox  V.  McLaughlin,  54  Cal.  605,  610. 

»  Cox  V.  Western  Pac,  R,  Co.,  47  Cal.  87,  90, 


§§  680, 681  mechanics'  liens.  622 

§  680,  Same.  Debt  due.  In  an  action  to  foreclose  a  lien 
on  the  property,  it  is  necessary  to  allege,  as  in  other  cases, 
facts  showing  that  the  debt  for  which  the  lien  is  claimed  has 
become  payable ;  and  so  where  the  complaint  alleges  that  the 
defendant  promised  to  pay  an  agreed  amount  "  upon  the 
completion  of  the  building,"  and  also  that  at  the  commence- 
ment of  the  action  the  building  was  not  completed,  it  is  in- 
sufficient.^" And  it  has  been  held  that  the  amount  due  must 
be  pleaded.^^  And  this  allegation  of  indebtedness  must  be 
made,  notwithstanding  the  fact  that  the  plaintiff  alleges  that 
while  the  contractor  was  performing  the  contract  the  owner 
compelled  the  contractor  to  abandon  his  work  on  the  build- 
ing, expelled  him  from  it,  refused  to  allow  him  to  proceed 
with  it,  took  possession  of  the  building,  completed  it,  used 
the  materials  purchased  by  the  contractor  in  completing  it, 
and  has  withheld  from  the  contractor  the  balance  of  the  con- 
tract price,  stating  it.^^ 

§  681.     Same.    Non-payment  of  indebtedness  to  plaintifif. 

And  an  allegation  that  the  plaintiff  performed  services  for 
which  the  lien  was  filed,  and  that  the  defendant  has  paid  to 
plaintiff  no  part  of  the  sum  alleged  to  be  due  thereon,  and 
the  same  is  now  due  and  owing  to  plaintiff  from  said  defend- 
ant, is  a  sufficient  allegation  of  non-payment,  no  demurrer 
being  interposed.^^ 

so  Harmon  v.  Ashmead,  60  Cal.  439,  441. 

31  Doggett  V.  BeUows  (Cal.,  March  24.  1885),  6  Pac.  Rep.  421,  6  West 
Coast  Rep.   57. 

W'yoming.  Sufficient  allegation  of  balance  due:  See  Davis  v.  Big 
Horn  L.  Co.,  14  T^'yo.  517,  85  Pac.  Rep.  980. 

32  Turner  v.  Strenzel,  70  Cal.  28,  30,  11  Pac.  Rep.  389.  See  Wiggins 
V.  Bridge,  70  Cal.  437,  439,  11  Pac.  Rep.  754. 

See  "Abandonment,"  §§  358  et  seq.,  ante;  §§  547  et  seq.,  ante. 

23  Palmer  v.  Uncas  M.  Co.,  70  Cal.  614,  615,  11  Pac.  Rep.  666. 

Issue  of  payment:  Barry  v.  Coughlin,   90  Cal.   220,   27  Pac.  Rep.   197. 

Averment  of  non-payment  essential.  In  an  action  to  foreclose  a 
mechanic's  lien,  the  gist  of  the  action  is  the  breach  of  the  contract, 
and  unless  there  is  an  allegation  of  non-payment,  the  complaint  fails 
to  state  a  cause  of  action:  Burke  v.  Dittus,  6  Cal.  App.  Dec.  638,  96 
Pac.  Rep.  330. 

Where  there  is  not  an  entire  failure  to  state  non-payment,  but  the 
same  is  averred  in  a  defective  manner,  the  complaint  is  sufficient,  in 
the  absence  of  a  special  demurrer  particularly  directed  thereto: 
Burke  v.  Dittus,  supra." 


623  COMPLAINT.  §§  682, 683 

§  682.  Same.  Premature  payment  to  contractor  by  owner. 
"Where  a  coutractor's  material-iuaii  avers  iu  his  coiuplaiut  to 
foreclose  a  lien  that  there  is  now  due  to  the  contractor  from 
the  owner,  under  the  contract,  a  certain  sum,  and  that  the 
same  has  not  been  paid,  and  does  not  deduct  a  premature 
payment  made  to  the  contractor,  and  ineffective,  under 
section  eleven  hundred  and  eighty-four,^*  as  against  lien- 
holders,  it  alleges  the  ultimate  fact;  and  the  reasons  why 
the  sum  alleged  is  due  and  has  not  been  paid  are  not  neces- 
sary to  be  stated,  to  raise  an  issue  as  to  the  premature  char- 
acter of  the  payment,^^ 

§  683.  Notice  to  owner.  A  complaint  to  foreclose  a  lien, 
that  alleges  that  plaintiff  furnished  materials,  to  be  used  in 
the  construction  of  a  building,  stating  in  general  terms  the 
kind  of  materials,  at  the  instance  and  request  of  the  con- 
tractors, naming  them,  and  that  the  amount  agreed  to  be 
paid  for  all  thereof  was  a  certain  sum,  and  that  the  plaintiff 
gave  to  the  owner  a  written  notice  that  he  had  agreed  to 
furnish  the  materials,  "  as  aforesaid,"  etc.,  shows  what  were 
the  contents  of  the  notice  required  by  section  eleven  hundred 
and  eighty-four,  and  is  sufficient  to  meet  the  requirements 
of  that  section.^^ 


Averment      of      con»itructioii      and      aeceptnnee      suflioient.     Waiver. 

Where  the  complaint  in  an  action  to  foreclose  a  mechanic's  lien  under 
a  building  contract,  which  provides  that  disputes  shall  be  referred 
to  arbitration,  avers  the  performance  of  the  work,  the  completion 
thereof,  and  the  acceptance  of  the  building,  no  averment  as  to  such 
provision  is  essential,  the  complaint  not  disclosing  any  such  disputes, 
and  the  acceptance  of  the  building  being  a  waiver  of  the  right  to 
reference  if  there  were  any:  Burke  v.  Dittus,  6  Cal.  App.  Dec.  638^ 
96    Pac.    Rep.    330. 

"  Kerr's  Cjc.  Code  Civ.  Proc.,  §  1184. 

*=  Ganahl  v.  Weir,  130  Cal.  237,  238,  62  Pac.  Rep.  512. 

Arizona.  Alleging  non-payment  at  time  of  filing  complaint,  in- 
stead of  at  time  of  filing  statement:  See  McPherson  v.  Hattich  (Ariz., 
March  30,  1906),  85  Pac.  Rep.  731. 

Alleging  amount  owing  from  ovner  to  contractor  in  action  by  sub- 
claimants,  or  premature  payment:  See  Nason  v.  John,  1  Cal.  App.  538, 
540,   82  Pac.  Rep.   566. 

Oregon.  Failure  to  allege  amount  due  the  contractor:  See  Watson 
V.  Noonday  M.  Co.,  37  Oreg.  287,  60  Pac.  Rep.  994,  996. 

'«  Russ  L.  Co.  v.  Garrettson,  87  Cal.  589,  594,  25  Pac.  Rep.  747. 

See  §§  568  et  secj.,  ante. 

Utah.  Subcontractors,  in  cases  where  the  original  contract  is  not 
of  record,  are  not  required  to  make  positive  averments  in  the  plead- 


§  684  mechanics'  liens.  624 

§  684.  Same.  Indebtedness  due  contractor  from  owner 
at  time  of  notice.  And  iu  an  action  by  subclaimants  gener- 
ally, under  a  valid  original  contract,  in  order  to  foreclose  a 
lien  upon  the  property  the  complaint  must  show  that  at  the 
time  of  the  filing  of  the  claim  of  lien  there  was  an  indebted- 
ness owing  from  the  owner  to  the  contractor,''^  or  that  at  the 
time  of  service  of  notice  on  the  owner,  under  section  eleven 
hundred  and  eighty-four,^^  there  were  moneys  due  or  to  be- 
come due  under  the  contract.^* 

Conclusion  of  law.  Where  neither  the  contract  price,  nor 
the  reasonable  value  of  the  work,  is  set  forth  in  the  com- 
plaint, an  averment  that  after  the  plaintiff  gave  the  de- 
fendant written  notice  that  he  had  agreed  to  furnish  the 
materials  there  became  due  and  owing  from  him  to  the 
contractor,  on  account  of  the  contract,  an  amount  in  excess 
of  the  balance  due  and  unpaid  to  the  plaintiff,  is  a  statement 
of  conclusions  of  law,  rather  than  of  facts,  and,  of  course, 
this  statement,  if  tested  by  demurrer,  would  have  been  insuf- 
ficient."'' 

ings  of  the  amount  of  such  contract,  nor  as  to  payments  made  under 
the  original  contracts:  Rrorrison  A'.  Inter-Mountain  Salt  Co.,  14  Utah 
201,  46  Pac.  Rep.  1104  (1S90),  modifying:  Teahen  v.  Nelson,  6  Utah  363, 
23  Pac.  Rep.  764,  under  a  prior  statute,  on  these  points. 

Wastainj^ton.  It  does  not  seem  to  be  necessary  to  set  out  the 
amount  due,  nor  in  detail  the  terms  or  conditions  of  the  contract  be- 
tween the  owner  and  the  contractor:  Griffith  v.  Maxwell,  20  Wash.  403, 
55  Pac.  Rep.  571. 

3'  Renton  v.  Conley,  49  Cal.  185,  187;  Wells  v.  Cahn,  51  Cal.  423,  424; 
Rosenkranz  v.  Wagner,  62  Cal.  151,  154;  Whittier  v.  Hollister,  64  Cal. 
283,  30  Pac.  Rep.  846;  Gibson  v.  Wheeler,  110  Cal.  243,  244,  42  Pac.  Rep. 
810.  But  see  O'Donnell  v.  Kramer,  65  Cal.  353,  4  Pac.  Rep.  204;  Kel- 
logg V.  Howes,  81  Cal.  170,  175,  22  Pac.  Rep.  509,  6  L.  R.  A.  588. 

Under  tlie  logger'.«»-lien  act  o£  Marcli  30,  1878:  W^ilson  v.  Barnard,  67 
Cal.  422,  423,  7  Pac.  Rep.  845. 

See  "Liability  of  Owner,"  §§  315  et  seq.,  §§  355  et  seq.,  §§  540  et  seq., 
and  §§452  et  seq.,  ante;   "Cumulative  Remedies,"   §§638  et  seq.,  ante. 

Nevada.  Contra,  under  act  of  1875:  Hunter  v.  Truckee  Lodge,  14 
Nev.  24,  reviewing  California  cases,  supra. 

"*  Kerr's  Cye.  Code  Civ.  Proc,  §  1184. 

^'  See  "Notice,"  §§  547  et  seq.,  ante,  and  references  in  previous  note. 
Or  it  should  state,  according  to  Rosenkranz  v.  Wagner,  62  Cal.  151, 
that  the  owner  was  notified  of  or  had  knowledge  of  the  claim  of  plain- 
tiff prior  to  payment  in  full  of  the  amount  due  to  the  original 
contractor  under  his  contract. 

Colorado.  Jensen  v.  Brown,  2  Colo.  694;  Epley  v.  Scherer,  5  Colo. 
536  (Gen.  Laws  1876,  p.  595,  §  1669);  Ditto  v.  Jackson,  3  Colo.  App.  281, 
31  Pac.  Rep.  81  (1889;  that  something  was  due  at  the  time  of  fur- 
nishing materials). 

«>  Russ  L.  Co.  V.  Garrettson,  87  Cal.  589,  592,  25  Pac.  Rep.  747. 


I 


625  COMPLAINT.  §§  685-688 

§  685.     Same.    Complaint  by  subcontractor's  material-man. 

A  complaint  by  a  subcontractor's  material-man  to  foreclose 
the  lien  against  the  owner,  which  is  in  the  usual  form,  and 
sets  forth  that  at  the  time  of  the  statutory  notice,  given  to 
the  owner  by  the  plaintiff,  a  certain  sum  was  yet  unpaid  to 
the  original  contractor,  but  contains  no  allegation  that  any- 
thing was  due  and  unpaid  from  the  original  contractor  to 
the  subcontractor,  states  a  cause  of  action,  and  a  demurrer 
thereto  is  improperly  sustained.*^ 

§  686.     Same.    Notice  to  contractor.    Action  against  fund. 

As  the  notice  provided  by  section  eleven  hundred  and  eighty- 
four  of  the  Code  of  Civil  Procedure  is  not  required  to  be 
given  to  the  original  contractor,  there  is  no  necessity  of 
averring  such  notice  in  an  action  bj-  a  subclaimant  against 
the  fund;  nor  any  facts,  as  against  the  original  contractor, 
which  are  peculiarly  within  the  contractor's  knowledge ;  nor 
of  a  claim  by  the  contractor,  which  is  presumably  within  the 
knowledge  of  the  subclaimant. *- 

§  687.  Request  of  owner.  Subclaimant.  It  has  also  been 
held  that  in  such  complaint  of  a  subclainumt  under  a  valid 
original  contract  it  may  be  alleged  that  the  work  was  done 
at  the  request  of  the  owner,  and  that  the  owner  agreed  to 
pay  plaintiff,  the  contract  being  with  the  original  eon- 
tractor.^^ 

§  688.     Contract  alleged  presumed  to  be  non-statutory. 

Where  there  is  no  allegation  in  the  complaint  of  a  con- 
tractor's material-man  that  the  contract  between  the  owner 
and  the  contractor  was  for  an  amount  exceeding  one  thon- 

"  Los  Ang-eles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co.,  2  Cal.  App. 
303,  304,  83  Pac.  Rep.  292  (rehearing  denied  by  supreme  court:  sylla- 
bus misleading).  In  this  case  plaintiff  did  not  ask  for  a  personal 
judgment  against   the   contractor. 

«  Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co.,  2  Cal.  App. 
303.  305,  83  Pac.  Rep.   292. 

*■=  Parker  v.  Placer  M.  Co,.  61  Cal.  348.  The  opinion  is  short,  not 
very  clear,  and  the  law  seems  doubtful. 

See   "Variances,"   S§  853   et  se  ;.,  post. 
Mech.   Liens  —  40 


§  689  mechanics'  liens.  626 

sand  dollars,  it  seems  to  be  presumed  that,  therefore,  the 
contract  was  not  such  a  one  as  is  required  to  be  filed,  but  is 
a  non-statutory  original  contract.** 

§  689.  Void  contract.  Where  the  contract  is  not  re- 
corded, the  overruling  of  a  special  demurrer  to  a  complaint, 
which  fails  to  allege  that  the  original  contract  was  in  writ- 
ing, or  that  it  was  for  more  than  one  thousand  dollars,  is 
harmless,  these  matters  being  peculiarly  within  the  knowl- 
edge of  the  owner. ^'"^ 

Amount  due.  "Where  the  contract  is  void,  payment  by  the 
owner  to  the  contractor  is  no  defense  to  the  complaint  seek- 
ing to  enforce  a  lien,  and  it  is  unnecessary  to  allege  that  any- 
thing was  due  the  contractor  when  notice  was  served  on  the 
owner.*^ 

Facts  showing  original  contract  to  be  void.  It  is  not 
necessary  to  allege  in  the  complaint  of  a  subcontractor  or 
subclaimant  that  the  original  contract  is  void,  as  that  is  a 
proper  matter  of  evidence,  especially  on  material  facts 
alleged  in  the  complaint.*'^  But  it  had  been  held  that  in  an 
action  to  enforce  a  lien  on  the  property,  subelaimants  must 
show,  by  proper  averments,  either  that  the  building  was  con- 
structed under  a  valid  contract,  if  statutory,  or  that  it  was 

"  Nason  v.  John,  1  Cal.  App.  538,  541,  82  Pac.  Rep.  566. 

See  "  Non-statutory  Contract,"  §§  258  et  seq.,  ante. 

*5  Berentz  v.  Belmont  O.  Co.,  148  Cal.  577,  584,  84  Pac.  Rep.  47,  113 
Am.  St.  Rep.  308. 

Utah.  As  to  complaint  of  subcontractor  setting  forth  contract  be- 
tween original  contractor  and  owner,  see  Culmer  v.  Caine,  22  Utali  216, 
61  Pac.  Rep.  1008.  See  Morrison  v.  Inter-Mountain  S.  Co.,  14  Utah 
201,  46  Pac.  Rep.  1104;  Morrison  v.  Willard,  17  Utah  306,  53  Pac.  Rep. 
832. 

«  Berentz  v.  Belmont  ©.  Co.,  148  Cal.  577,  584,  84  Pac.  Rep.  47,  113 
Am.  St.  Rep.  308. 

Judgment  impressing  fund  due  contractors.  Owner  vritbout  com- 
plaint. In  an  action  to  foreclose  inechanics'  liens,  the  owner  cannot 
complain  of  the  action  of  the  court  in  impressing  a  fund  deposited 
in  court  by  the  owner,  and  found  due  to  tlie  contractors,  with  any 
personal  judgments  rendered  therein  against  sucli  contractors  in 
favor  of  subcontractors  and  material-men,  whose  liens  have  been 
declared  void  for  the  failure  of  the  contractor  to  record  the  contract: 
Los  Angeles  P.  B.  Co.  v.  Higgins  (Cal.  App.,  1908),  7  Cal.  App.  Dec.  95. 

"  Macomber  v.  Bigelow,  126  Cal.  9,  12,  58  Pac.  Rep.  312;  Yancy  V. 
Morton,  94  Cal.  558,  29  Pac,  Rep.  1111. 


627  COMPLAINT.  §§690,691 

not;  and  a  complaint  upon  one  theory  will  not  warrant  a 
judgment  rendered  upon  the  other ;  and  it  was  so  held  where 
the  plaintiffs  alleged  facts  going  upon  the  theory  that  there 
was  no  contract,  and  that  they  dealt  directly  with  the  owner 
of  the  building,  and  that  he  was  liable  for  the  whole  of  their 
claim."** 

§  390.  Same.  Agreed  price.  Value.  In  an  action  by 
subclaimants  under  a  void  statutory  original  contract  to 
foreclose  a  lien  upon  the  property,  it  is  necessary  to  make 
allegations  as  to  the  value  of  the  labor  done  and  materials 
furnished  to  the  contractor,  and  it  is  not  sufficient  to  allege 
merely  what  amounts  the  contractor  agreed  to  pay  there- 
for.*" 

But,  in  the  absence  of  a  demurrer  for  uncertainty,  where 
the  statutory  original  contract  is  void  for  want  of  record, 
and  the  complaint  contains  no  direct  averment  of  the  value 
of  the  materials  furnished  by  the  material-man,  but  it  was 
alleged  that  the  claimant  furnished  them  to  the  contractor  at 
the  agreed  price  stated,  it  is  sufficient  on  appeal,  although 
evidence  of  the  fact,  rather  than  the  ultimate  fact  of  value, 
since  the  agreed  price  was  prima  facie  evidence  of  the  value 
of  the  materials,  and  it  must  be  held  that  the  pleader  in  this 
manner  alleged  the  value.'° 

§  691.  Same.  Request  of  owner.  Under  a  void  statutory 
original  contract,  as  well  as  when  there  is  a  substantial 
breach  of  section  eleven  hundred  and  eighty-four,  as  to  pay- 
ments, under  a  statutory  original  contract,  subclaimants  may 
sue  for  the  value  of  the  materials  as  furnished  at  the  special 
instance  and  request  of  the  owner  of  the  building,  and  it  was 
held  that  it  was  not  necessarv  to  set  out  the  original  contract 


<«  Reed  v.  Norton.  99  Cal.  617,  619,  34  Pac.  Rep.  333.  But  see  Yancy 
V.  Morton,  94  Cal.  558,  560,  29  Pac.  Rep.  1111. 

See  "  Variances,"  §§  853  et  seq.,  post. 

«  Booth  V.  Pendola,  88  Cal.  36,  41,  23  Pac.  Rep.  200,  25  Id.  1101.  See 
Booth  V.  Pendola  (Cal.,  Aug.  1,  1890),  24  Pac.  Rep.  714. 

See  "Evidence,"  §§  798  et  seq.,  and  §§  829  et  seq.,  post. 

^  Bringham  v.  Knox,  127  Cal.  40,  44,  59  Pac.  Rep.  198.  See  Russ 
L.  &  M.  Co.  V.  Garrettson,  87  Gal.  589,  25  Pac.  Rep.  747. 


§  692  MECHAXICS'    LIENS.  628 

and  allege  its  invalidity.    But  there  seems  to  be  some  conflict 
in  reference  to  these  points.^^ 

§  692.  Ownership."  In  all  actions  to  foreclose  a  lien  upon 
the  property,  the  person  sued  as  owner  should  be  shown  to 
be  the  owner  at  the  time  of  commencing  the  action. °^  It  will 
be  observed  that  this  involves  an  entirely  different  question 
from  that  concerning  the  person  named  as  owner  in  the  claim 
of  lien ;  ^*  and  where  the  complaint  avers  that,  in  the  claim 
of  lien  as  filed,  the  plaintiff  described  the  premises  as  those 

"  Yancy  v.  Morton,  94  Cal.  558,  560,  29  Pac.  Rep.  1111. 

In  Reed  v.  Norton,  99  Cal.  617,  620,  34  Pac.  Rep.  333,  an  action  under 
a  void  original  contract,  it  was  said:  "In  an  action  to  enforce  tlie  lien 
of  a  mechanic  or  material-man,  the  complaint  must  show,  either  that 
the  building  was  constructed  under  a  valid  statutory  contract,  or  that 
it  was  not;  and  a  complaint  upon  one  theory  will  not  warrant  a  judg- 
ment rendered  upon  the  other.  In  their  complaints,  respondents 
allege  the  facts,  and  go  upon  the  theory  that  there  was  no  contract, 
that  they  dealt  directly  with  the  owner  of  the  building,  and  that  he 
is  liable  for  the  whole  of  their  claims.  The  court  finds  and  proceeds 
upon  the  theory  that  these  averments  of  respondents  are  not  true, 
that  there  was  a  valid  contract,  and  that  respondents  dealt  directly 
with  Helm  as  contractor,  and  not  with  Norton  (the  owner).  The  judg- 
ment must  therefore  be  reversed.  Upon  the  theory  on  which  it  was 
rendered,  tlie  complaint  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action." 

See  "Variances,"  §§853  et  seq.,  post. 

In  Coss  V.  MacDonough,  111  Cal.  662,  667,  44  Pac.  Rep.  325,  it  was 
said:  "It  is  insisted,  the  claim  of  lien  having  set  up  a  contract  be- 
tween respondent  Grubb  and  the  original  contractor  Andrews,  no 
recovery  could  be  had  upon  a  complaint  setting  out  a  conttract  with 
defendant  MacDonough,  the  owner.  We  think  this  contention  un- 
sound. That  a  complaint  against  the  owner  of  the  building  may  be 
filed  under  §  1184  [1183?]  of  the  Code  of  Civil  Procedure,  upon  a  claim 
of  lien  setting  up  a  contract  with  an  alleged  original  contractor,  is 
expressly  held  in  Davies-Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641, 
22  Pac.  Rep.  860,  and  the  principle  is  also  fully  supported  in  Yancy  v. 
Morton,  94  Cal.  558,  29  Pac.  Rep.  1111." 

''  Colorado.  As  to  alleging  ownership,  see  Sprague  I.  Co.  v.  Mouat 
L.  &  I.  Co.,  14  Colo.  App.  107,  121,  60  Pac.  Rep.  179,  183. 

Idaho.  Allegation  that  labor  was  performed  for  owners,  without 
showing  who  they  were:  Lowe  v.  Turner,  1  Idaho  109. 

Joint  o^vner.s:  See  Id. 

'"^  Corbett  v.  Chambers,  109  Cal.  178,  184,  41  Pac.  Rep.  873.  See 
Santa  Barbara  v.  Huse,  51  Cal.  217,  219. 

Oregon.  Alleging  ownership  at  time  of  work:  See  Title  G.  &  T.  Co. 
V.  Wrenn,  3.5  Oreg.  62,  56  Pac.  Rep.  271,  76  Am.  St.  Rep.  454. 

AVyoming.     See  Fein  v.  Davis,  21  Wyo.  118. 

Failure  to  allege  that  name  of  o^vner  tva.s  unknown:  See  Wyman  v. 
Quayle,  9  Wyo.  326,  63  Pac.  Rep.  9SS. 

^  See  "  Claim  of  Lien,"  §§  361  et  seq.,  ante.  See  Hicks  v.  Murray,  43 
Cal.  515,  521. 


629  COMPLAINT.  §§  693, 694 

purchased  and  occupied  by  a  certain  person,  there  is  no 
allegation  that  such  person  owned  the  property,  or  that 
any  particular  person  owned  the  property  at  the  time  of. 
the  commencement  ot"  the  action. ^^ 

Conveyance.  As  against  a  general  demurrer,  there  being 
no  special  demurrer,  an  allegation  that  a  deed  to  the  property 
was  delivered  to  a  party  is  sufficient  to  show  ownership  in 
such  party."'" 

§  693.  Knowledge  of  improvement  by  owner.  The  owner's 
knowledge,  in  some  form,  of  the  work  should  be  alleged,  to 
charge  his  interest."  Where,  in  an  action  to  foreclose  a  lien, 
it  is  averred  that  the  building  was  constructed  upon  the  laud 
"  with  the  knowledge  of  each  of  said  defendants,"  and  the 
owner  is  a  defendant,  the  complaint  alleges  that  such  owner 
had  notice  of  the  construction  of  the  building.^** 

§  694.  Notice  of  non-responsibility.  The  complaint,  how- 
ever, need  not  aver  that  the  owner  of  the  realty  did  not  give 
notice  that  he  would  not  be  responsible  for  the  construction 
of  the  building,  in  order  to  lund  liis  interest  in  the  property 

65  Hicks  V.  Murray.  43  Cal.  515,  521. 

AVIiere  the  coniplaiiit  alleges  senerally  lliat  tlie  coiistruftor  of  the 
biiil<Iing  was  the  contractor,  and  further  alleges  specific  facts  showing 
that  tlie  constructor  was  the  owner,  the  former  allegation  may  be 
disregarded  on  general  demurrer:  Hinckley  v.  Field's  B.  &  C.  Co.,  91 
Cal.  136,  141.  27  Pac.  Rep.  594. 

=8  Bryant  v.  Broadwell,  140  Cal.  490,  494,  74  Pac.  Rep.  33. 

"  Gibson  v.  W^Teeler,  110  Cal.  243,  244,  42  Pac.  Rep.  810. 

AVashington.  So  it  is  sufficient,  under  Laws  1893,  p.  32,  to  aver  that 
the  purchaser  of  the  material  was  "  the  contractor,"  who  is  made  the 
agent  of  the  owner  thereunder:  Griffith  v.  Maxwell,  20  Wash.  403,  55 
Pac.  Rep.  571.  See  Kremer  v.  Walton,  11  Wash.  120,  39  Pac.  Rep.  374, 
16  W^ash.  139,  47  Pac.  Rep.  238. 

Contra:  Pacific  R.  M.  Co.  v.  Hamilton,  61  Fed.  Rep.  476  (under  1 
Hill's  Code,  §  1663). 

Hawaii.  Contractual  relation  between  owner  and  material -man 
must  be  pleaded;  a  mere  allegation  that  materials  were  used  in  the 
building  is  insufficient:  Allen  v.  Reist,  16  Hawn.  23. 

Oklahoma.  Unnecessary  for  subclaimant  to  aver  or  prove  that 
owner  had  knowledge  that  the  claimant  furnished  materials  to  con- 
tractor or  was  in  privity  with  him:  See  Ferguson  v.  Stephenson- 
Brown  L.  Co.,   14  Okl.  148,  77  Pac.  Rep.   184. 

'■"  West  Coast  L.  Co.  v.  Newkirk.  SO  Cal.  275,  277.  22  Pac.  Rep.  231. 
Or  where  it  alleges  tliat  tlie  person  who  caused  the  work  to  be  done 
was  the  "agent"  of  the  owner:  Hines  v.  Miller,  122  Cal.  517,  55  Pac. 
Rep.  40L 


§§  695, 696  mechanics'  liens.  630 

on  the  foreclosure  of  a  mechanic's  lien  thereon ;  such  notice, 
if  given,  being  matter  of  defense.^^ 

§  695.  Agency.  Authority  of  person  causing  improve- 
ment to  be  made.  Wliether  the  original  contract  is  valid  *" 
or  void,*^^  the  complaint  in  an  action  by  a  subclaimant  to 
foreclose  the  lien  upon  the  property  should  show  that  the 
person  with  whom  he  dealt  had  authority  from  the  owner, 
either  express  or  implied,  to  create  liens  upon  the  property. ^^ 

Emplo3anent  by  corporation.  Allegation  of  employment 
by  a  corporation  should  be  alleged  by  the  corporation 
directly,  and  not  "  through  "  an  agent,  although  the  latter 
allegation  is  sufficient."^ 

§  696.  Same.  Mining  claim.  Where  an  action  is  brought 
to  foreclose  the  lien  of  a  miner,  under  section  eleven  hundred 
and  eighty-three,^*  as  it  stood  before  the  amendment  of  1893, 
for  labor  performed  at  the  request  of  one  alleged  to  be  the 
agent  of  the  owner,  the  plaintiff  must  allege  and  prove  that 
the  work  was  done  at  the  request  of  such  an  agent  of  the 
owner  as  comes  within  the  meaning  of  the  section  referred 
to.°^ 

^^  West  Coast  L.  Co.  v.  Newkirk.  80  Cal.  275,  277,  22  Pac.  Rep.  231; 
Harlan  v.  Stufflebeem,  87  Cal.  508,  513,  25  Pac.  Rep.  686. 

See  "Answer,"  §§738  et  seq.,  post. 

«»  Corbett  v.  Chambers.  109  Cal.  178,  183,  41  Pac.  Rep.  873. 

Colorado.  Alleging  agency:  See  Colorado  I.  W.  v.  Taylor,  12  Colo. 
App.  451,  55  Pac.  Rep.  942. 

Failure  to  plead  facts  to  bind  husband's  interest:  See  Perkins  v. 
Boyd,  16  Colo.  App.  266,  65  Pac.  Rep.  350,  s.  c.  86  Pac.  Rep.   1045. 

Complaint  failing  to  show  privity  between  owner  and  lessee  insuf- 
ficient: Little  Valeria  G.  M.  &  M.  Co.  v.  Ingersoll,  14  Colo.  App.  240,  59 
Pac.  Rep.  970;  Wilkins  v.  Abell,  26  Colo.  462,  58  Pac.  Rep.  612. 

«i  Davies-Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641,  646,  22  Pac. 
Rep.  860. 

'^^  See  "  Agency,"  §§  459  et  seq.,  and  §  572  et  seq.,  ante. 

Oregon.  The  complaint  should  show  that  the  contract  was  made 
with  the  owner  of  the  building  or  his  agent:  Wilcox  v.  Keith,  3  Oreg. 
372   (decided  in  1871). 

AVashington.  See  Pacific  K.  M.  Co.  v.  Hamilton,  61  Fed.  Rep.  476 
(Cir.  Ct.). 

"  Sullivan  v.  Grass  Valley  Q.  M.  &  M.  Co.,  77  Cal.  418,  421,  19  Pac. 
Rep.  757. 

«*  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1183. 

«5  Reese  v.  Bald  Mountain  Consol.  G.  M.  Co.,  133  Cal.  285,  287,  65  Pac. 
Rep.  578. 


I 


631  COMPLAINT.  §§  697, 698 

The  name  of  a  defendant  oil  company  set  forth  in  the 
complaiut  does  not   compel  the   couelusion  that   a  "  well 
alleged  to   have   been  constructed  for  it  was   a  well  for 
mining  oil."* 

§  697.  Same.  Contractor  as  agent  of  owner.  Where  the 
complaint  alleges  that  A.  T.  is  the  agent  and  contractor  for 
the  owner,  that  W.  entered  into  a  contract  with  the  plain- 
tiffs, by  which  said  plaintiffs  agreed  to  furnish  materials,  etc., 
and  there  is  no  allegation  anywhere  that  W.  agreed  to  pay 
for  this  material  under  any  such  contract,  and  it  is  quite 
apparent  upon  the  face  of  the  statement  itself,  and  even  more 
apparent  from  the  construction  of  the  pleading  as  a  whole, 
that  such  allegation  is  not,  and  was  not  intended  by  the 
pleader  as,  an  obligation  that  the  contractor  bought  this 
material  acting  as  the  agent  of  the  owner,  W.,  it  is  evident 
that  the  statement  is  made  in  the  sense  of  the  term  "  agent  " 
as  used  in  section  eleven  hundred  and  eighty-three,*^  and  not 
a  common-law  agent.*'^  And,  under  similar  circumstances, 
this  is  the  rule,  even  where  it  is  alleged  that  the  claimant  sold 
certain  lumber,  etc.,  to  the  owner,  at  the  contractor's  request, 
as  the  agent  of  the  owner .*^ 

§  698.  Same.  Allegations  to  bind  contractor.  But  wliere 
it  was  alleged  that  I.  was  the  owner  of  the  premises,  and 
"  that  the  defendant  F.  was  employed  by  said  defendant  I., 

««  Parke  &  L.  Co.  v.  Inter  Nos  O.  &  D.  Co.,  147  Cal.  490,  492,  82  Pac. 
Rep.  51. 

"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1183. 

«8  Jewen  V.  McKay,  82  Cal.  144,  146,  23  Pac.  Rep.  139.  See  Hines  v. 
Miner,  122  Cal.  517,  55  Pac.  Rep.  401. 

See  §§  459  et  seq.,  and  §§  469  et  seq.,  ante. 

Oregon.  Hunter  v.  Cordon,  32  Oreg.  443,  52  Pac.  Rep.  182;  Pilz  v. 
Killingsworth,  20  Oreg.  432,  26  Pac.  Rep.  305.  See  Cross  v.  Tscharnig, 
27  Oreg-.  49,  39  Pac.  Rep.  540;  Allen  v.  Rowe,  19  Oreg.  188,  23  Pac.  Rep. 
901;  Sellwood  L.  &  M.  Co.  v.  Monnell,  26  Oreg.  267,  38  Pac.  Rep.  66.  The 
complaint  was  required  to  show  that  the  owner  of  the  land  erected  the 
building,  to  bind  the  land:  Willamette  Falls  Co.  v.  Riley,   1  Oreg.   183. 

\Vnsbiiigton.     Cutter  v.  Striegel,  4  W^ash.  346,  30  Pac.  Rep.  326. 

«»  Renton  v.  Conley,  49  Cal.  185,  187  (under  act  of  March  30,  1868,  §  1, 
similar  to  Kerr's  Cyc.  Code  Civ.  Proc,  §  1183,  in  this  regard).  See  Reed 
V.  Norton,  90  Cal.  590,  598,  26  Pac.  Rep.  767,  27  Pac.  Rep.  426  (void 
contract). 


§  699  mechanics'  liens.  632 

the  owner  as  aforesaid,  as  agent  for  and  in  said  construction 
and  erection  of  said  buildings/"  and  that  the  claimant  entered 
into  an  agreement  with  said  defendant  F.,  "  as  such  agent  of 
said  defendant  I,,  for  the  delivery  of  the  materials,"  it  was 
held  that  no  cause  of  action  was  stated  against  the  agent, 
where  there  is  no  allegation  that  the  defendant  agent  was  a 
"  contractor  "  ;  the  court  saying,  "  If  it  were  alleged  that  F. 
was  a  contractor,  subcontractor,  architect,  builder,  or  other 
person  who  had  charge  of  the  construction  of  the  defendant 
Irvine's  buildings,  we  should  be  bound  to  hold  Flood  to  be 
the  agent  of  Irvine  for  the  purpose  of  chapter  two,  title 
four,  of  the  Code  of  Civil  Procedure."  ^° 

§  699.  Materials.'^  The  plaintiff  in  an  action  to  fore- 
close a  lien  upon  the  property  for  materials  must  allege  and 
prove  that  they  were  furnished  to  be  used,'-  and  were  actu- 

'»  Hooper  v.  Flood,  54  Cal.  218,  220.  And  see  Eaton  v.  Rocca,  75  Cal. 
93,  95,  16  Pac.  Rep.  529. 

Void  oontraet.  Los.s  of  lieu.s.  Personal  liability  of  contractor. 
Juflg^ment  for,  in  foreolo.sure  action.  A  lien  claimant  whose  lien  has 
been  declared  invalid  for  failure  of  the  contractor  to  record  the  build- 
ing- contract  may,  in  the  action  brought  to  foreclose  the  lien,  obtain 
a  personal  judgment  against  the  contractor  to  whom  he  furnished 
materials  or  rendered  service:  Los  Angeles  P.  B.  Co.  v.  Higgins 
(Cal.  App.,  1908),   7  Cal.  App.  Dec.  95. 

"  AVashington.  "Lumber":  See  Bolster  v.  Stocks,  13  Wash.  460,  43 
Pac.  Rep.  532,  534,  1099. 

AlIcKing  cliaracter  of  materials.  It  is  no  objection,  however,  to  the 
complaint,  that  it  fails  to  allege  that  the  materials  were  such  as  were 
lienable  articles,  or  of  the  kind  or  character  to  be  used  in  the  con- 
struction of  the  building  in  controversy.  When  it  states  the  facts  and 
alleges  the  kind  of  materials  furnished,  the  law  will  determine 
whether  or  not  the  materials  so  furnished  were  lienable  articles:  "  The 
term  '  lumber  '  is  certainly  specific  enough  to  furnish  the  owner  with 
definite  information":  Bolster  v.  Stocks,  13  Wash.  460,  467,  43  Pac. 
Rep.   532,   534,   1099. 

"  Bottomly  v.  Rector  of  Grace  Church,  2  Cal.  90,  92;  Houghton  v. 
Blake,  5  Cal.  240,  241;  Holmes  v.  Richet,  56  Cal.  307,  311,  38  Am.  Rep. 
54;  Patent  B.  Co.  v.  Moore,  75  Cal.  205,  210,  16  Pac.  Rep.  890;  Cohn  v. 
Wright,  89  Cal.  86,  88,  26  Pac.  Rep.  643;  Neihaus  v.  Morgan  (Cal.,  June 
2,  1896),  45  Pac.  Rep.  255. 

Not  suflicient  to  show  use  in  such  building,  etc.:  Bottomly  v.  Rec- 
tor of  Grace  Church,  2  Cal.  90. 

AVashingtou.  As  to  allegation  that  materials  were  furnished  "pur- 
suant to  or  in  performance  of"  the  contract  between  contractor  and 
owner,  see  Griffith  v.  Maxwell,  20  Wash  4U3,  55  Pac.  Rep.  571. 

Allegation  and  proof  that  materials  were  furnished  for  joint  im- 
provement of  two  or  more  mining  claims:  Sly  .v.  Palo  Alto  G.  M.  Co., 
28  Wash.  485,  68  Pac.  Rep.  871. 


I 


633  COMPLAINT.  §  TOO 

ally  used,  in  the  Iniilding  sought  to  be  charged  with  the 
lien.'^^ 

Materials  affixed  and  attached.  Where  the  complaint  al- 
leges that  the  plaintiff  sold  and  delivered  to  a  certain  person 
named  as  owner  "  certain  hardware  and  building  material 
to  be  used  in  the  erection  and  construction  of  said  building 
and  affixed  and  attached  thereto,"  it  is  sufficient  to  show 
that  the  materials  were  actually  used  in  the  building,  at 
least  if  no  special  demurrer  is  interposed.'* 

Reference  to  claim  of  lien  as  exhibit.  But  an  allegation 
"  that  the  materials  were  furnished  upon  the  terms  and  con- 
ditions set  forth  in  plaintiff's  notice  of  lien  hereto  attached, 
marked  '  Exhibit  A,'  which  is  hereby  referred  to  and  made 
part  hereof,"  while  it  may  be  said  to  be  a  sufficient  averment 
of  the  terms  and  conditions  of  the  contract,  yet  it  is  not 
a  sufficient  averment  that  the  materials  were  furnished  to  be 
used  in  the  construction  of  the  building,  since  the  plaintiff 
refers  to  the  exhibit  and  makes  it  a  part  of  the  pleadings 
simply  for  the  purpose  of  showing  the  terms  and.  conditions 
of  the  sale  to  defendants,  namely,  the  price  of  the  materials 
and  when  payable.^^ 

§  700.  Same.  Defect  in  complaint  waived.  It  has  been 
held  that,  upon  foreclosure  of  a  lien,  a  failure  to  make  the 
necessary  allegation  that  the  materials  were  actually  used  in 
the  building  may  be  waived  by  the  conduct  of  the  parties, 
as  where  the  demurrer  to  the  complaint  was  overruled  by 
consent,  and  upon  the  trial,  when  plaintiff  offered  his  evi- 
dence, counsel  for  defendant,  in  his  statement  to  the  court, 

"  Bottomly  v.  Rector  of  Grace  Church,  2  Cal.  90,  92;  Houghton  v. 
Blake,  5  Cal.  240;  Holmes  v.  Richet,  56  Cal.  307,  310,  38  Am.  Rep.  54. 
See  Davis  v.  Living-ston,  23  Cal.  283,  288;  Patent  B.  Co.  v.  Moore,  75 
Cal.  205,  211,  16  Pac.  Rep.  890;  Colin  v.  Wright,  89  Cal.  86,  88,  26  Pac. 
Rep.  643;  Roebling  Sons  Co.  v.  Bear  V.  Irr.  Co.,  99  Cal.  488,  490,  34  Pac. 
Rep.  80;  Hill  v.  Bowers,  45  Kan.  592,  593,  26  Pac.  Rep.  13. 

Colorado.  Contra:  Small  v.  Foley,  8  Colo.  App.  435,  47  Pac.  Rep.  64 
(1889). 

Okluhoma.  Use  of  materials  must  be  alleged:  Ryndak  v.  Seawell, 
13  Okl.  737,  76  Pac.  Rep.   170. 

«  Reed  v.  Norton,  90  Cal.  590,  698,  26  Pac.  Rep.  767,  27  Id.  426. 

"  Cohn  V.  Wright,  89  Cal.  86,  89,  26  Pac.  Rep.  643  (on  special  de- 
murrer). 


§§701,702  mechanics'  liens.  63-1 

limited  his  objection  to  the  sufficiency  of  the  form  of  the 
claim  of  lien,  and  gave  the  plaintiff  the  assurance  that  evi- 
dence of  use  might  be  given  without  another  amendment 
to  the  complaint;  and  to  permit  the  defendant  to  raise  any 
objection  to  the  complaint  which  might  have  been  obviated 
b}-  such  a  timely  amendment  would  be  unfair.^^ 

§  701.  Same.  Materials  furnished.  Dates.  Where  the 
complaint  alleges  that  plaintiff  furnished  materials  between 
April  6,  1862,  and  June  28,  1862,  the  fair  and  reasonable 
construction  of  the  averment  is  that  the  plaintiff  com- 
menced furnishing  the  materials  for  the  building  on  April 
6th  and  continued  to  furnish  the  same  from  that  time  to 
June  28thJ' 

Furnished  "  on  or  about."  But  where  the  complaint  al- 
leged that  the  materials  were  furnished  on  the  1st  of  July, 
and  the  claim  of  lien  stated  that  they  were  furnished  "  on 
or  about "  July  1st,  the  plaintiff  will  be  limited  to  the 
allegations  of  the  complaint,  and  he  cannot  recover  for 
materials  furnished  before  July  Ist."^ 

§  702.  Employment.  Death  of  owner.  Under  section 
nineteen  hundred  and  ninet^'-eight,"'*  providing  for  the  con- 
tinuance of  the  employment  for  a  reasonable  time  after  the 
death  or  insanity  of  the  employer,  the  facts,  and  not  mere 
conclusions,  must  be  alleged  in  the  complaint,  and  a  mere 

«  Mandary  v.  Smartt,  1  Cal.  App.  498,  500,  82  Pac.  Rep.  561. 

Montana.  See  Missoula  M.  Co.  v.  O'Donnell,  24  Mont.  65,  60  Pac. 
Rep.  991. 

"  McCrea  v.  Craig,  23  Cal.  522,  525. 

Oregon.  The  complaint  should  show  the  dates  on  which  the  ma- 
terials were  furnished:  Curtis  v.  Sestanovich,  26  Oveg.  107,  37  Pac.  Rep. 
67;  W'illamette  Falls  Co.  v.  Smith,  1  Oreg.  171  (1851);  or  labor  per- 
formed: Willamette  Falls  Co.  v.  Smith,  supra. 

"  Santa  Monica  L.  &  M.  Co.  v.  Hege  (Cal.,  March  10,  1897),  48  Pac. 
Rep.  69,  following  Goss  v.  Strelitz,  54  Cal.  640;  but  see,  on  rehearing, 
119  Cal.  376,  51  Pac.  Rep.  555.  See  Reed  v.  Norton,  99  Cal.  617,  619,  34 
Pac.  Rep.  333;  Fernandez  v.  Burleson,  110  Cal.  164,  167,  42  Pac.  Rep. 
566,  52  Am.  St.  Rep.  75;  Madera  F.  &  T.  Co.  v.  Kendall,  120  Cal.  182,  52 
Pac.  Rep.  304,  65  Am.  St.  Rep.  177;  Bell  v.  Bosche,  41  Neb.  853,  855,  60 
N.  W.  Rep.  92;  Lonkey  v.  W'ells,  16  Nev.  274;  Lavin  v.  Bradley,  1  N.  M. 
297;  Morrison  v.  Willard,  17  Utah  306,  309,  53  Pac.  Rep.  832,  70  Am.  St. 
Rep.  784. 

Distinguished:  Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641. 

"  Kerr's  Cyc.  Civ.  Code,  §  1998. 


635  COMPLAINT.  §§  T03, 704 

allegation  that  the  continuance  of  the  employment  was 
necessary,  or  that  the  time  was  reasonable,  is  not  enough; 
the  facts  must  be  stated,  showing  it  to  be  so.***^ 

§703.  Nature  of  labor.  Where  the  allegation  of  the 
complaint  is  that  the  plaintiff  performed  labor  in  the  erection 
of  the  building,  and  the  evidence  showed  that  the  wori<:  con- 
sisted in  tearing  down  an  old  building,  and  the  work  of  the 
plaintiff  might  properly  be  said  to  be  the  erection  of  the 
building,  the  allegation  is  sufficient.^^ 

Extra  work  for  which  a  lien  is  claimed  should  be  specifi- 
cally set  forth. **^ 

§  704.  Same.  Grading  and  other  work.  To  state  a 
cause  of  action  under  section  eleven  hundred  and  ninety- 
one  of  the  Code  of  Civil  Procedure,  it  must  appear  that  the 
work  was  done  "  in  an  incorporated  city  or  town,"  and  if  it 
is  uncertain  whether  the  work  was  done  within  an  incor- 

'»  W^eithoff  V.  Murray,  76  Cal.  508,  510,  18  Pac.  Rep.  435. 

See  §§  117  et  seq.,  ante. 

Under  the  act  of  March  31,  1891  (Stats,  and  Amdts.  1891,  p.  195), 
giving-  a  lien  to  laborers  on  the  property  of  corporations  doing-  busi- 
ness in  tiiis  state,  the  complaint  was  required  to  contain  an  allegation 
concerning  the  times  at  which  the  wages  were  payable,  and  that  the 
plaintiff  was  employed  at  weekly  or  monthly  wages:  Keener  v.  Eagle 
Lake  L.  &  I.  Co.,  110  Cal.  627,  631,  43  Pac.  Rep.  14;  Ackley  v.  Black 
Hawk  G.  M.  Co.,  112  Cal.  42,  45,  44  Pac.  Rep.  330;  Kuschel  v.  Hunter 
(Cal.,  Sept.  14,  1897),  50  Pac.  Rep.  397. 

Where  the  plaintiff  alleged  that  he  agreed  to  do  the  work  by  the 
month  at  an  agreed  rate  of  one  hundred  dollars  per  month,  this  is  not 
an  allegation  that  the  company  agreed  to  pay  liim  monthly:  Ku.3cliel 
V.  Hunter,  supra.  But,  as  shown  elsewhere,  this  act  was  declared  to 
be  unconstitutional:  See  §§  35  et  seq.,  ante. 

*>  Ward  V.  Crane,  118  Cal.  676,  678,  50  Pac.  Rep.  839.  It  has  been 
held  that  it  is  not  necessary  for  the  owner's  laborer  or  material-man 
to  state  the  nature  of  the  alterations  or  repairs  made,  or  whether  each 
person  performed  a  separate  job,  or  contributed  to  a  separate  altera- 
tion or  repair,  or  wliether  all  contributed  to  the  same  thing:  Jewell  v. 
McKay,  82  Cal.  144,  146,  23  Pac.  Rep.  139. 

"  Sweeney  v.  Meyer,  124  Cal.  512,  57  Pac.  Rep.  479. 

Colorado.  The  nature  of  the  work,  showing  that  it  Is  within  the 
statute,  must  be  pleaded:  Lindemann  v.  Belden  Consol.  M.  &  M.  Co.,  16 
Colo.  App.  342,  65  Pac.  Rep.  403. 

Under  the  act  of  1864,  it  was  held  that  the  pleading  should  show 
whether  the  claimant  labored  as  carpenter,  mason,  or  otherwise,  in 
order  that  it  might  be  seen  whether  lie  was  entitled  to  a  lien:  Ford 
Mining  Co.  v.  Langford,  1  Colo.  62,  65.  Same  principle:  Arkansas  R.  L. 
R.  &  C.  Co.  V.  Flinn,  3  Colo.  App.  381,  33  Pac.  Rep.  1006  (1889). 


§^705,706  mechanics'  liens.  636 

porated  city  or  town,  or  whether  an  ordinance  for  grading 
was  to  be  passed  by  the  board  of  supervisors  of  the  city,  it 
was  demurrable  on  this  ground.*^  It  has  been  held  to  be 
sufficient,  where  the  complaint  is  in  effect  an  indebitatus 
assumpsit  count  at  common  law,  and  declares  upon  an 
executed  contract,  and  it  lacks  the  ordinary  allegations 
of  indebtedness,  and  that  the  services  were  rendered  at 
defendant's  request,  which  are  not  necessary  when  the  con- 
sideration, as  well  as  the  promise,  are  implied  from  the 
nature  of  the  transaction  declared  on.^* 

§  705.  Object  of  labor.  Well.  Where  the  allegations 
of  the  complaint  merely  show  that  materials  were  furnished 
for  the  construction  and  drilling  of  a  "  well,"  while  it  may  be 
surmised  from  the  cdrporate  name  of  an  oil-mining  company 
therein  alleged  to  be  the  owner  thereof  that  such  well  is  an 
oil-well,  yet,  in  the  absence  of  an  allegation  compelling  such 
conclusion,  it  may  be  construed  as  a  w^ell  constructed  simply 
for  the  purpose  of  obtaining  water.*^ 

§  706.  Claim  of  lien.^«  Time  of  filing.  In  actions  to  fore- 
close liens  upon  the  property,  as  in  other  cases,  where  the 
right  of  a  person  depends  upon  his  doing  a  particular  thing 
within  a  definite  number  of  days  after  a  certain  event,  it  is 
necessary  for  him  to  allege  and  prove  that  the  acts  were 
performed  within  the  time  required  by  law.^^  So  in  an 
action  to  foreclose  a  lien,  the  plaintiff  must  allege  that  the 
claim  of  lien  was  filed  within  the  proper  time ;  ^®  and  so  an 

S3  DurreU  v.  Dooner,  119  Cal.  411,  51  Pac.  Rep.  628. 

^  Doneg-an  v.  Houston   (Cal.  App.,  May  28,   1907),  90  Pac.  Rep.   1073. 

^  Parke  &  L.  Co.  v.  Inter  Nos  O.  &  D.  Co.,  147  Cal.  490,  492,  82  Pac. 
Rep.  51. 

*«  See,  generally,  "Claim  of  Lien,"  §§361  et  seq.,  ante;  "Materials," 
§§699    et  seq.,   ante;    "Demurrer,"    §§728   et   seq.,   post. 

AIa.««ka.  Claim  of  lien,  generally:  Jorgenson  Co.  v.  Sheldon,  2  Alas. 
607,  609. 

«  Cohn  V.  Wright,  89  Cal.  86,  88,  26  Pac.  Rep.  643. 

Not  neces.sary  to  aver  '«v]iut  iilaintilC  paid  for  recording:  claiiu  o£ 
Uen:  Mulcahy  v.  Buckley,   100  Cal.   484,   49U,   35  Pac.  Rep.   144. 

'^  For  instance,  before  the  amendment  of  1897,  within  thirty  days 
after  the  completion  of  the  building:  Slight  v.  Patton,  96  Cal.  384,  387, 
31  Pac.  Rep.  248   (subcontractor). 

See  "  Time  of  Filing  Claim,"  §§  422  et  seq.,  ante. 


637  COMPLAINT.  §  707 

allegation  that  the  claim  of  lien  was  filed  "  on  or  about  " 
a  certain  date  would  be  insufficient.^"  And  the  complaint 
is  not  subject  to  general  demurrer,  if  it  otherwise  appears 
therefrom  that  the  claim  was  filed  within  the  proper  time."" 

§  707.     Same.     Statutory  completion  for  purpose  of  filing. 

Where,  however,  the  contractor's  material-man  avers  in  his 
complaint  that  the  contractor  stopped  all  work  on  a  certain 
day,  and  surrendered  the  contract  and  his  rights  there- 
under to  the  owner,  and  that  the  latter  accepted  the  structure 
and  took  possession  thereof,  and  ever  since  continued  in  the 
occupation  and  use  thereof,  but  does  not  aver  how  near  the 
structure  approached  completion,  it  seems  to  be  a  sufficient 
allegation  of  the  completion  of  the  building  for  the  purpose 
of  filing  liens,  even  if  it  appears  that  the  contract  is  void."*^ 
An  allegation  of  completion  on  a  certain  date  was  construed 
to  mean  actual  completion. ^- 

Colorjulo.  Arkansas  R.  L.  R.  &  C.  Co.  V.  FHnn.  3  Colo.  App.  381,  33 
Pac.   Rep.    1006. 

Nevada.  An  omission  so  to  plead  can  only  be  taken  advantage  of 
by  demurrer:  Skyrme  v.  Occidental  M.  Co.,  8  Nev.  219.  Likewise  as  to 
time  of  commencing'  suit:  Id. 

Oregon.      Dalles  L.  Co.  v.  Wasco  W.  Mfg.  Co.,  3  Oreg.  .527. 

It  must  afiirniatively  appear  from  complaint  that  notice  filed  con- 
tained all  essential  provisions  required  by  the  statute;  that  it  was 
proper  in  form,  verified  as  required,  and  filed  within  the  time  pre- 
scribed: Curtis  V.  Sestanovich,  26  Oreg.  107,  37  Pac.  Rep.  67;  Pilz  v. 
Killingsworth.  20  Oreg.  432,  26  Pac.  Rep.  305.  See  Smith  v.  Wilkins 
(Oreg.,  May  1,  1897),  48  Pac.  Rep.  708;  Dalles  L.  Co.  v.  Wasco  W.  Mfg. 
Co.,  3  Oreg.  .527. 

Vtali.  The  claim  of  lien  cannot  be  helped  out  by  averments  in  the 
complaint:  Morrison  v.  Willard,  17  Utah  306,  53  Pac.  Rep.  832,  70  Am. 
St.  Rep.  784. 

s"  Cohn  V.  Wright,  89  Cal.  86,  89,  26  Pac.  Rep.  643. 

Oregon.  So  an  allegation  that  the  claim  was  duly  made  out  and 
filed,  as  this  is  a  conclusion  of  law:  Pilz  v.  Killingsworth,  20  Oreg.  432, 
26  Pac.  Rep.  305;  or  where  it  is  alleged  to  have  been  done  "in  pursu- 
ance of  the  statute  in  such  cases  made  and  provided":  Smith  v.  Wil- 
kins  (Oreg.,  May  1,  1897),  48  Pac.  Rep.  70S. 

»  Wood  v.  Oakland  &  B.  T.  Co.,  107  Cal.  500,  502;  Parke  &  L.  Co.  v. 
Inter  Nos  O.  &  D.  Co.,  147  Cal.  490,  493,  82  Pac.  Rep.  51  (on  a  certain 
date  "  within  thirty  days  after  the  completion  of  the  said  well,"  held 
sufficient). 

Ses  "Demurrer."  §§728  et  seq..  post. 

•"  Giant  P.  Co.  v.  San  Oiogo  F.  Co.,  78  Cal.  193.  105.  198.  20  Pac.  Rep. 
419. 

■'-  Parke  &  L.  Co.  v.  Inter  Nos  O.  &  D.  Co.,  147  Cal.  490,  493,  82  Pac. 
Rep.  51. 


§§  708-711  mechanics'  liens.  638 

§  708.     Same.    Alleging    contents    of    claim.      Generally. 

Where  the  complaiut  as  to  the  contents  and  requirements  of 
the  claim  of  lien  substantially  follows  the  language  of  the 
statute,  and  refers  to  the  place  of  record  of  the  claim,  and 
the  record  was  made  a  part  of  the  complaint,  it  seems  that 
the  averments  with  respect  to  the  claim  are  sufficient. ^^ 

§  709.  Same.  Name  of  owner.  Where  the  complaint 
alleged  that  the  claim  of  lien  stated  the  name  of  E.  B.  N.  as 
the  owner  of  the  house  and  the  reputed  owner  of  a  lease- 
hold interest  in  the  realty,  and  that  the  claim  of  lien  stated 
that  the  owner  of  the  fee  of  the  real  estate  was  not  known 
at  the  time  of  filing  the  claim,  it  is  a  substantial  averment 
that  it  was  stated  in  the  claim  that  neither  the  name  of  the 
real  owner  nor  of  the  reputed  owner  was  known  to  the 
plaintiff  when  he  filed  the  claim."* 

§  710.  Same.  Description  of  property  to  be  charged 
with  the  lien.  It  is  sufficient  for  the  complaint  to  allege  that 
the  claim  of  lien  described  the  property;  it  is  not  necessary 
to  allege  in  specific  terms  that  the  claim  contained  a  "  de- 
scription of  the  property  sufficient  for  identification."  ^^ 

§  711.  Same.  Claim  of  lien  as  exhibit  to  complaint. 
Where  it  is  alleged  in  a  complaint  to  foreclose  a  lien  that  a 
copy  of  the  claim  of  lien  is  attached  to  and  made  a  part  of 
the  complaint,  whether  it  contains  the  statements  required 
by  the  statute  or  not  may  be  shown  by  referring  to  the 
claim.""     And  where  a  copy  is  so  attached,   it  becomes  a 

»3  Barilari  v.  Ferrea,  59  Cal.  1,  2. 

M  West  Coast  L.  Co.  v.  Newkirk,  80  Cal.  275,  276,  22  Pac.  Rep.  231. 

See  "Claim  of  Lien,"  §§  379  et  seq.,  ante. 

»=i  Coss  V.  MacDonough,  111  Cal.  662,  667,  44  Pac.  Rep.  325. 

See  "Description,"  §§  399  et  seq.,  ante. 

As  to  eoinplaint  i?oo«I  aj^ainst  general  demurrer  on  the  ground  that 
It  did  not  allege  that  the  claim  of  lien  described  the  property  sought 
to  be  charged  with  the  lien,  and  the  terms,  time  given,  and  condi- 
tions of  the  contract,  a  copy  of  the  claim  being  annexed  as  an  ex- 
hibit, see  Georges  v.  Kessler,  131  Cal.  183,  63  Pac.  Rep.  466. 

»«  Russ  L.  Co.  V.  Garrettson,  87  Cal.  589,  594,  25  Pac.  Rep.  747.  See 
Cohn  V.  Wright,  89  Cal.  86;  89,  26  Pac.  Rep.  643. 

See  §§  699  et  seq.,  ante. 


639  COMPLAINT.  §§  712, 713 

part  of  the  allegations  of  the  complaint;  for  there  can  be 
no  difference  between  setting  forth  such  instrument  in  the 
body  of  the  pleading  and  in  annexing  it  as  an  exhibit,  and 
making  it  a  part  of  the  pleadings  by  proper  reference.  In 
each  case  the  copj^  is  a  part  of  the  pleading.  The  only 
difference  is  in  the  arrangement  or  sequence  of  the  parts, 
and  this  difference  is  unimportant  upon  the  question  whether 
the  complaint  states  a  cause  of  action.  The  copy  may  thus 
be  referred  to  in  order  to  ascertain  whether  the  claim  of  lien 
described  the  property,  and  the  terms,  time  given,  and 
conditions  of  the  contract.''^ 

§  712.  Same.  Terms,  time  given,  and  conditions  of  con- 
tract. And  where  such  claim  is  so  attached,  and  it  states 
that  the  work  was  to  be  done  and  materials  furnished  "  as 
specified  in  the  plans  and  specifications  of  said  buildings 
or  structures,"  the  complaint  is  good  as  against  general 
demurrer,  although  it  does  not  set  forth  the  plans  and 
specifications  of  the  original  contract.^^ 

§  713.  Same.  Variance  between  claim  as  an  exhibit  and 
allegations  of  complaint.  A  claim  of  lien  attached  as  an 
exhibit,  stating  "  there  was  no  time  specified  for  the  com- 
mencement or  completion  of  the  work,"  and  that  payment 
was  "  to  be  made  .  .  .  upon  completion  of  the  work,  or  as 

Alaska.  Better  practice  to  plead  notice  verbatim,  or  attach  copy 
and  make  same  part  of  complaint:  Jorgenson  Co.  v.  Sheldon,  2  Alas. 
607,  609. 

Arixoun.  Statement  in  exhibit,  made  part  of  complaint,  cannot 
supply  necessary  alleg'ation  omitted  from  complaint:  McPlierson  v. 
Hattich   (Ariz.,  March  30,  1906),  85  Pac.  Rpe.  731. 

Oregon.  Matthiesen  v.  Arata,  32  Oreg.  342,  50  Pac.  Rep.  1015,  67 
Am.  St.  Rep.  535;  Pilz  v.  Killingsworth,  20  Oreg.  432,  26  Pac.  Rep.  305. 

Where  the  copy  of  the  verilication  lias  tlie  word  "  seal  "  written 
after  the  signature  of  the  notary,  it  is  sufficient,  although  there  is  no 
averment  that  the  official  seal  was  attached  thereto:  Griffith  v.  Max- 
well,  20  W'ash.  403,   55  Pac.  Rep.  571. 

Wa.«4hinK:ton.  Bill,  as  exhibit,  part  of  complaint:  Fitch  v.  Apple- 
gate,  24  Wash.  25,  64  Pac.  Rep.   147. 

»'  George  v.  Kessler,  131  Cal.  183,  184,  63  Pac.  Rep.  466. 

See  §  712,  post. 

»»  Slight  V.  Patton,  96  Cal.  384,  386,  31  Pac.  Rep.  24S. 

See  §711,  ante,  and  "Demurrer,"  §§728  et  seq.,  post. 

Aloutaaa.     See  Duignan  v.  Montana  Club,  16  Mont.  189,  197. 


^§  714, 715  mechanics'  liens.  610 

required  during  its  progress,"  and  complaint  alleging  "  that 
no  time  for  said  payment  was  or  is  stated  or  set  forth  in 
said  contract  or  agreement,"  the  complaint  is  not  thereby 
rendered  demurrable  for  uncertainty  or  ambiguity,  since  the 
law  would  require  payment  on  completion  of  the  Avork. '■*'■' 

§  714.  Same.  Unnecessary  statements  in  claim  as  an 
exhibit.  An  essential  allegation  of  the  complaint  may  con- 
trol, notwithstanding  an  unnecessary  statement  in  the  claim 
of  lien  attached  as  an  exhibit,  and  this  does  not  render 
the  complaint  fatally  defective.  Thus  a  complaint  is  not 
fatally  defective  which  alleges  that  the  claim  of  lien  was 
filed  within  thirty  daj's  after  the  completion  of  the  building, 
and  the  claim  of  lien  attached  as  an  exhibit  shows  that 
it  was  filed  after  the  time  alleged  in  the  complaint.^"" 

§  715.     Other  interests."^  For  what  purpose  alleged.  With 

reference  to  this  subject,  it  has  been  said  by  the  court : 
"  The  complaints,  after  averring  the  performance  of  the 
work  for  which  it  is  sought  to  enforce  a  lien  on  the  land, 
allege  that  Cook  has  or  claims  some  interest  in  the  land, 
but  that  the  same  is  subject  to  the  plainiff's  lien.  The  court 
below  treated  the  general  denial  in  the  answer  as  equivalent 
to  a  disclaimer  of  Cook  that  he  had  or  claimed  any  interest 
in  the  land.  This  Avas  error.  The  answer  Avas  only  a 
denial  of  the  issuable  facts  stated  in  the  complaint,  and  the 
circumstance  that  Cook  had,  or  claimed,  some  interest  in 
the  land  was,  of  itself,  wholly  immaterial,  except  in  so 
far   as  it   shoAved  that  he   was   a  necessary   part}'   to   the 

»  Bryan  v.  Abbott,  131  Cal.  222,  224,  63  Pac.  Rep.  363. 

"«  Slight  V.  Patton,  96  Cal.  384,  386,  31  Pac.  Rep.  248.  The  court 
said  that  it  was  evident  that  there  was  a  clerical  error  in  a  date,  and 
read  "August"  instead  of  "November." 

AVa.shington.  Variance  between  allegations  of  the  complaint  and 
claim  of  lien  attached  as  an  exhibit,  held  to  show  a  clerical  error: 
Seattle  L.  Co.  v.  Sweeney,  33  Wash.  691,  74  Pac.  Rep.  1001. 

"^  Allegation  of  ownership  of  well  and  appurtenances,  and  owner 
and  holder  of  an  interest  in  the  land:  Parke  &  L.  Co.  v.  Inter  Nos  O.  & 
D.  Co.,  147  Cal.  490,  495. 

Colorado.  San  Juan  H.  Co.  v.  Carrothers,  7  Colo.  App.  413,  43  Pac. 
Rep.    10.53. 

See,  generally,  E;aton  v.  Rocca,  75  Cal.  9-3,  16  Pac.  Rep.  529. 


641  COMPLAINT.  §  715 

action.*"^  But  the  averment  that  his  interest  was  subject 
to  the  plaintiff's  lien  presented  a  material  issue,  to  which 
the  answer  was  responsive.  The  answer,  therefore,  was  not 
a  denial  that  he  had,  or  claimed,  an  interest  in  the  land,  l)ut 
only  of  the  fact  that  it  was  subject  to  the  plaintiff's  lien."  ^°^ 

'"-  Rliodes,  J.,  in  concurring',  disputed  tliis  point.  See  Slight  v.  Pat- 
ton.  96  Cal.  384,  387,  31  Pac.  Rep.  248;  Donolioe  v.  Trinity  Consol.  G.  & 
S.  M.  Co.,  113  Cal.  119,  121,  45  Pac.  Rep.  259. 

'»3  Elder  v.  Spinks,  53  Cal.  293,  294.  See  Pennie  v.  Hildreth.  81  Cal. 
127,  131.  132,  22  Pac.  Rep.  398. 

In  Sichler  v.  Look,  93  Cal.  600,  608,  29  Pac.  Rep.  220,  it  was  said: 
"  Tlie  averment  in  the  complaint,  that  the  appellant  'has  or  claims  to 
have  some  interest  or  claim  upon  said  premises,  whicli  interest  or 
claim  is  subsequent  to  and  subject  to  the  lien  of  the  plaintiff's  mort- 
gage,' was  for  the  purpose  of  showing  that  the  appellant  is  a  proper 
party  defendant,  and  is  sufficient  therefor.  The  character  of  his  in- 
terest is  immaterial  to  the  plaintiff,  and  need  not  be  set  forth  in  the 
complaint:  Poett  v.  Stearns,  28  Cal.  226;  Anthony  v.  Nye,  30  Cal.  401. 
Sucli  an  averment  is  not  an  issuable  fact:  Elder  v.  Spinks,  53  Cal.  293. 
If  the  appellant  had  desired  to  protect  such  interests,  he  should  have 
appeared  and  presented  it  to  the  court  with  the  grounds  upon  wliich 
he  claimed  its  protection.  If  he  has  any  interest  in  the  mortgaged 
premises  paramount  to  the  mortgage,  it  will  not  be  affected  by  the 
judgment  or  the  sale  thereunder."  This  case  does  not  seem  to  prop- 
erly state  the  decision  in  Elder  v.  Spinks,  supra. 

The  court  further  said:  "The  complaint,  however,  alleges  that 
the  defendant  claims  some  interest  in  the  premises  adverse  to  the 
plaintiff,  and  'that  the  claim  of  said  defendant  is  without  any  right 
whatever,  and  defendant  has  not  any  estate,  right,  title,  or  interest 
whatever  in  or  about  said  premises,  or  any  part  thereof.'  The  answer 
admitted  that  the  defendant  had  some  claim  to  the  property,  but  denied 
tnat  the  claim  was  without  right,  and  denied  that  defendant  had  not 
any  estate  or  right  therein.  This,  as  was  held  in  Elder  v.  Spinks,  53 
Cal.  293,  raised  a  material  issue;  and,  although  the  pleader  should  un- 
doubtedly have  proceeded  to  set  out  the  nature  of  the  interest  claimed 
by  the  defendant,  still  there  was  no  demurrer  to  the  answer,  and  it 
does  not  appear  that  any  objection  was  taken  to  the  evidence  intro- 
duced under  the  issue  as  made.  The  objection  now  urged  —  that  the 
finding  of  fact  is  without  the  issues,  and  cannot  therefore  be  con- 
sidered —  cannot  be  sustained":  Tompkins  v.  Sprout,  55  Cal.  31,  35 
(action  to  set  aside  deed). 

In  Pennie  v.  Hildreth,  81  Cal.  127,  131,  132,  22  Pac.  Rep.  398,  it  was 
said:  "The  appellant  insists  that  the  court  below  erred  in  sustaining 
the  demurrer  to  his  answer,  and  rendering  judgment  against  him. 
This  depends  upon  whether  an  answer  of  general  denial  to  an  un- 
verified complaint  puts  in  issue  any  material  fact  in  an  action  to 
quiet  title.  Counsel  for  respondent  contend  with  seeming  confidence 
that  such  an  answer  presents  no  issue  to  be  tried.  This  is  based  upon 
the  theory  that  in  this  class  of  cases  the  only  course  for  a  defendant 
to  take  is  to  set  up  affirmatively  his  adverse  claim  to  the  land,  or 
disclaim.  They  cite  in  support  of  this  position  Tompkins  v.  Sprout, 
55  Cal.  31;  People  v.  Center,  66  Cal.  551,  5  Pac.  Rep.  263,  6  Pac.  Rep.  481. 
These  cases  do  not  support  the  position  taken  by  respondent.  They 
simply  hold  that,  in  order  to  maintain  his  defense  on  the  ground  of  an 
adverse  claim,  a  defendant  must  set  up  such  claim,  and  that  tlie  owner 
In  possession  may  require  the  nature  and  cliaracter  of  the  adverse 
estate  or  interest  to  be  produced,  exposed,  and  judicially  determined. 
Mech.  Lienj  —  41 


§  715  mechanics'  liens.  642 

In  another  case  it  was  said:  "The  denial  in  the  answer 
of  the  allegation  in  the  complaint,  that  the  interests  or  claims 
of  the  defendants  answering  were  subordinate  and  subject 
to  the  liens  of  the  plaintiffs,  did  not  cast  upon  them  the 
burden  of  proving  that  allegation.  If  the  defendants,  in 
their  answer  to  that  allegation,  had  stated  facts  which 
showed  that  their  claim  was  not  subordinate  or  subject  to  the 
liens  of  the  plaintiffs,  they  would  have  had  the  affirmative 
of  the  issue.  And  it  was  their  '  business,  when  thus  called 
upon,  to  disclose  '  the  nature  of  their  claim.  By  not  doing 
so,  they  certainly  occupy  no  better  position  than  they  would 
if  they  had  done  so.  Conceding  that  the  denial  of  the 
defendants  raised  an  issue,  we  think  it  was  one  of  which 
they  had  the  affirmative,  and  as  they  introduced  no  evidence 
to  support  it,  the  court  was  justified  in  finding  that  their 
lien  was  subordinate  and  subject  to  the  plaintiffs'."  ^°*  Wliere 
the  only  interest  sought  by  the  plaintiff  to  be  charged  with 
the  lien  is  the  interest  of  the  employer  in  the  premises  held 
under  a  contract  of  sale,  and  the  allegation  is  that  the  person 
holding  the  legal  title  has  or  claims  some  interest  in  the 
premises,  it  must  be  construed  as  an  averment  of  the  interest 
in  the  title  held  by  the  vendee,  and  not  of  a  title  prior  or 
superior  to  that  of  the  vendee,  as  the  plaintiff's  lien  did  not 
affect  the  title  held  by  the  owner,  and  as  the  title  was  not 
a  proper  subject  of  litigation  in  the  action  to  foreclose  the 
lien  against  the  interest  of  the  vendee,  and  not  to  ascertain 
or  determine  the  respective  rights  or  interests  of  the  vendee 
and  owner  as  against  each  other.^°^ 

But  the  basis  of  his  right  to  require  the  adverse  interest  to  be  pro- 
duced and  adjudicated  is  his  own  interest  in  or  ownership  of  the  land. 
This  is  the  one  thing  necessary  for  him  to  prove,  in  order  to  make 
out  his  case.  If  it  is  denied,  a  material  issue  is  raised,  which  casts 
upon  him  the  burden  of  proving  such  interest  or  ownership.  Until 
he  does  this,  the  defendant  is  not  called  upon  to  produce  or  prove  his 
3laim.  Therefore  the  general  denial  put  in  issue  a  fact  necessary  to  the 
plaintiff's  recovery,  and  the  demurrer  to  it  was  improperly  sustained." 
See  Harmon  v.  Ashmead,   68  Cal.  321,  323,  9  Pac.  Rep.  183. 

See  "Burden  of  Proof,"  §§  785  et  seq.,  post. 

iM  Harmon  v.  Ashmead,  68  Cal,  321,  323,  9  Pac.  Rep.  183;  citing 
Anthony  v.  Nye,  30  Cal.  401. 

105  worden  v.  Hammond,  37  Cal.  61,  65  (1862).  See  Sichler  v.  Look,  93 
Cal.  600,  608,  29  Pac.  Rep.  220. 

AVashington.  And  so  a  complaint  for  foreclosure  which  makes  the 
assignee  of  the  estate  of  the  purchaser  of  the  materials  a  party,  and. 


643  COMPL.UNT.  §§716,717 

§  716.     Same.     Alleging  no  other  claim  upon  fund.     It 

is  not  necessary  for  plaintiff  to  allege  that  no  one  else  has 
a  claim  upon  the  fund  in  the  hands  of  the  owner  of  the 
building.  If  any  other  party  also  claims  the  same  fund,  it 
will  be  determined  wdien  set  up  in  some  proper  manner. 
Without  its  being  so  set  up,  the  court  should  not  presume 
that  it  exists,  nor  is  the  court  bound  upon  mere  demurrer 
to  the  complaint  to  act  upon  any  theory  that  there  may 
possibly  be  any  such  claim."" 

§  717.  Description  of  property."^  Speaking  of  this  sub- 
ject, the  court  has  said:  "In  an  action  to  foreclose  the 
lien,  it  is,  however,  necessary  that  the  property  which  the 
plaintiff  seeks  to  subject  to  a  sale  therefor  should  be 
definitely  described,  and  that  the  judgment  should  specifi- 
cally designate  the  property  affected  by  the  lien  and  directed 
to  be  sold,  otherwise  the  officer  executing  the  judgment  can 
neither  point  out  the  property  which  he  offers  for  sale,  nor 
place  the  purchaser  in  possession  thereof,  and  the  deed 
which  he  may  execute  will  not  convey  any  title ;  and  as  the 
judgment  must  follow  the  complaint,  it  is  essential  that 
the  complaint  should  itself  contain  such  specific  description. 
In  the  complaint  of  the  Los  Angeles  Planing  Mill  Company 
it  is  alleged  that  the  building  is  '  upon  that  certain  lot  or 
parcel  of  land  situate  in  the  city  and  county  of  Los  Angeles, 
state  of  California,  at  the  northwest  corner  of  Eighth  and 
Hope  streets.'  A  conveyance  in  which  that  was  the  only  de- 
scription would  be  void  for  uncertainty.  In  the  complaints 
of  the  other  plaintiffs  the  lot  is  described  as  '  lot  six  (6)  in 

without  describing  him  as  assignee,  merely  alleges  that  he  has  some 
Interest  in  the  premises,  must  be  interpreted  as  directed  against  such 
party's  interest  in  his  personal  capacity,  and  not  as  assignee:  Quinby 
V.  Slipper,   7  Wasli.   475,   35  Pac.   Rep.   116,   38  Am.   St.  Rep.   899. 

Alleviation  that  rfefeiulant  lia.s  or  olaliiiH  to  have  a  lien,  inserted  only 
for  the  purpose  of  having  court  determine  priority  between  plaintiff 
and  defendant  lienors,  without  service  of  sufficient  cross-complaint: 
See  Powell  v.  Nolan,  27  Wash.  318,  67  Pac.  Rep.  712,  717. 

"«  Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co.,  2  Cal.  App. 
303,  305,  83  Pac.  Rep.  292. 

"'  See  "Object  of  Labor,"  §§  166  et  seq.,  ante;  "Description  of  Prop- 
erty," §§399  et  seq.,  ante;  "Claim,"  §§706  et  seq.,  ante;  "Extent  of 
Lien,"   §§438  et  seq.,  ante;  "Decree,''  §§903   et  seq.,  post. 

Owner  in  posses-sion  of  premises,  and  alleged  to  have  personal 
knowledge  of  the  work,  not  misled  by  description  in  complaint  and 
Claim  of  lien:    See  Bryan  v.  Abbott.  131  Cal.  222,  224,  63  Pac.  Rep.  363. 


§  718  mechanics'  liexs. 


G14 


block  twenty-eight   (28),  of  the  Hnber  tract,  in  said  city,' 
one    of   said    complaints    stating    that    said   lot    is  '  situate 
at  the  corner  of  Hope  and  Eighth  streets,  in  said  city,'  and 
the  other  that  it  is  at  the  northeast  corner  of  said  streets. 
The   court,  however,   found  that  the   building  is  upon  the 
lot,  in  said  city,  '  on  the  northeast  corner  of  Eighth  and 
Hope  streets,  said  lot  being  more  particularly  described  as 
lot  6,  and  the  southerly  ten  feet  of  lot  7,  block  28,  of  the 
Huber  tract.'     In  its  decree,  it,  however,  directs  that  only 
that  part  of  the  building  which  is  upon  lot  6  shall  be  sold. 
.  .  .  The  statute  "^  provides  that  '  the  land  upon  which  any 
building  ...  is    constructed,    together    with    a    convenient 
space  about  the  same,  or  so  much  as  may  be  required  for  the 
convenient  use  and  occupation  thereof,  to  be  determined  by 
the  court  on  rendering  judgment,'  is  also  subject  to  the  lien. 
The  amount  of  land  thus  to  be  made  subject  to  the  lien  is  an 
issuable  fact,^°^  and  can  be  determined  by  the  court  only 
when  such  issue  is  presented  by  the  pleadings.     The  land 
upon  which  the  building  is  constructed  is  necessarily  subject 
to  the  lien,  to  the  extent  of  the  owner's  interest  therein,  but 
if  the  plaintiff  would  claim  that  more  than  that  is  required 
for  the  convenient  use  and  occupation  of  the  building,  and 
have  the  same  sold  in  satisfaction  of  his  lien,  he  must  make 
appropriate  averments  therefor.    Although  the  finding  of  the 
court  that  the  southerly  ten  feet  of  lot  7  and  the  northerly 
thirty-nine  feet  of  lot  6  are  required  for  the  convenient  use 
and  occupation  of  said  building  was  in  accordance  with  evi- 
dence introduced  therefor,  neither  of  the  complaints  made 
any  such  averment,  and  before  making  such  finding,  the  court 
should  have  directed  the  complaints  to  be  amended  there- 
for." "^ 

§  718.     Same.     Land  for  convenient  use  and  occupation. 

It  was  said  by  the  court:    "In  Green  v.  Chandler,' ''  — the 
case   upon  which   appellants  rely,  —  it   appeared  that   the 

los  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1185. 
i»»  Citing   Green    v.   Chandler.    54    Cal.    626. 

"»  WMUamette  S.  M.  Co.  v.  Kremer,  94  Cal.  205,  210,  29  Pac.  Rep.  633. 
Montunu.     See  Helena  L.   Co.  v.  Montana  Cent.   R.  Co.,    10  Mont.   81, 
24  Pac.  Rep.  702. 
1"  54   Cal.  626. 


645  COMPLAINT.  §  718 

structure  in  controversy  was  built  upon  a  tract  of  land  con- 
taining something  over  eight  acres.  The  court  found  that 
the  whole  of  said  parcel  with  its  appurtenances  was  re- 
quired for  the  convenient  use  and  occupation  of  the  mill, 
etc.  It  was  held  on  appeal  that  this  finding  was  not  within 
any  of  the  issues  made  by  the  complaint  and  answer,  and 
that  there  was  no  evidence  upon  which  the  court  could 
determine  that  the  whole  or  any  particular  part  of  the 
land  was  necessary  for  the  use  and  occupation  of  the 
structure.  It  was  apparent  to  the  court  in  that  case  that 
the  court  beloAv  had  decreed  the  sale  of  a  larger  tract  of  land 
than  that  actually  occupied  by  the  building  upon  which  the 
lien  was  filed;  and  as  there  was  no  allegation,  either  in  the 
complaint  or  in  the  answer,  that  all  of  the  land  was  neces- 
sary- for  the  convenient  use  and  occupation  of  the  building, 
the  court  held  that  the  finding,  being  outside  of  any  issue, 
did  not  warrant  the  judgment.  In  Sidliuger  v.  Kerkow,^^- 
it  did  not  appear  that  the  plaintiff  was  claiming  any  more 
land  than  that  occupied  by  the  building,  and  we  held  that 
the  failure  of  the  court  to  define  the  exact  amount  or  extent 
of  the  land  necessary'  for  the  convenient  use  of  the  structure 
did  not  invalidate  tiie  decree  that  the  purchaser  would 
acquire  only  the  land  covered  by  the  building.  The  land 
actually  occupied  by  the  building  is  necessarily  subject  to 
the  lien,  and  it  is  only  where  the  plaintiff  claims  that  more 
than  that  is  required  for  its  use  and  occupation,  that  he  must 
make  averments  therefor.^^'  There  is  nothing  in  the  record 
in  this  case  to  show  that  the  land  described  in  the  decree  is 
greater  in  extent  than  that  covered  by  the  building.  We 
have  to  assume  that  it  is  not.  Every  presumption  must  be 
indulged  in  favor  of  the  judgment."  "* 

"2  82  Cal.  42,  22  Pac.  Rep.  932. 

"■'  Citing  W^inamette  S.  M.  Co.  v.  Kremer,  94  Cal.  205,  29  Pac.  Rep. 
633. 

'"  Sachse  v.  Aul)urn.  95  Cal.  650,  651,  30  Pac.  Rep.  800.  See  Tibbetts 
V.  Moore.  23  Cal.  208,  213. 

Colorado.  Not  necessary  to  aver  that  tlie  land  described  is  neces- 
sary for  the  convenient  use  and  occupation  of  the  building:  See  Seely 
V.  Xeill,   37  Colo.  198,   86  Pac.  Rep.  334. 

\ew  Mexico.  See  Ford  v.  Springer  T^.  Assoc,  8  N.  M.  37,  41  Pac. 
Rep.  541,  citing  Green  v.  Chandler,  54  Cal.  626. 


§§719,720  mechanics'  LIENS.  646 

§  719.     Same.    Description  of  whole  or  part  of  building. 

And  in  another  case  it  was  said :  "  In  direct  line  with  the 
claim  made  by  the  lien  follows  the  allegation  of  the  com- 
plaint, as  follows :  '  That  on  or  about  the  twenty-fifth  day 
of  October,  1889,  the  defendant,  T.  J.  Ludwig,  entered  into  a 
contract  with  the  defendants,  A.  Marks  and  B.  Marks, 
whereby  the  said  Ludwig  agreed  to  provide  all  materials, 
and  add  to  and  change  into  a  two-story  brick  building 
the  one-story  brick  building  then  upon  the  premises  above 
described'  (referring  to  the  entire  lot).  This  allegation  of 
the  complaint  is  not  denied,  and  therefore  no  issue  is  made 
by  the  pleading  as  to  whether  or  not  the  claim  of  lien  covers 
an  entire  building  or  only  a  part  thereof.  Such  being  the 
fact,  appellant  was  not  authorized  to  introduce  evidence 
against  his  own  admission.  The  findings  of  the  court  also 
fully  support  the  allegations  of  the  complaint  in  this  regard, 
and  the  judgment  follows  the  findings.  Hence  the  difficul- 
ties that  arose  in  the  Willamette  case  ^^^  are  not  present 
here."  ''*" 

§  720.     Same.     Description  in  claim  of  lien  referred  to. 

In  an  action  to  foreclose  a  lien,  where  the  claim  of  lien 
contains  an  accurate  description  of  the  lot,  "  together  with 
the  building  thereon,"  upon  which  the  lien  is  claimed,  a 
reference  may  be  had  to  the  same  to  obviate  uncertainty  in 
other  directions;  and  where  it  is  averred  in  the  complaint 
that  a  claim  of  lien  contains  a  description  of  the  property 
sufficient  for  identification,  and  this  allegation  is  borne  out 
by  an  inspection  of  the  claim  referred  to,  the  complaint  is 
sufficient,  so  far  as  the  description  is  concerned.^^' 

Plaintiff  may  disregard  lack  of  precision  in  his  notice,  and 
may  enlarge  the  description  in  his  complaint  in  foreclosure 
in  such  manner  that  the  judgment  will  distinctly  specify 
the  land  which  is  to  be  sold.^^® 

"5  Willamette  S.  M.  Co.  v.  Kremer,  94  Cal.  205,  210,  29  Pac.  Rep.  633. 
"6  Brunner  v.  Marks,  98  Cal.  374,  376,  33  Pac.  Rep.  265. 
"'  Newell  V.  Brill,  2  Ca,l.  App.  61,  64,  83  Pac.  Rep.  76. 
"s  Union   L.   Co.   v.  Simon    (Cal.  App.,   March   13,    1906),    89   Pac   Rep. 
1077,  1081. 


647  COMPLAINT,  §  721 

§  721.  Damages.  In  an  action  for  damages  for  breach 
of  the  contract,  there  need  be  no  allegation  of  demand  for 
the  damages. ^^^ 

Attorneys'  fees.  And  no  allegation  need  be  inserted  in 
the  complaint  for  the  foreclosure  of  a  lien  on  the  property 
relative  to  the  claim  of  plaintiff  for  attorneys'  fees,  -where 
they  are  properly  allowed  by  the  statute ;  and  an  allegation 
on  that  subject,  if  made,  does  not  bind  even  the  party 
making  it.^-° 

"»  Bryson  v.  McCone,  121  Cal.  153,  53  Pac.  Rep.  637,  639. 

Attorne}-.s'  fees  paid  out  recoverable  as  dainag;es.  Wliere  the  bond 
of  a  contractor  provides  for  the  cancelation  and  release  of  the  build- 
ing, by  the  contractor,  within  thirty-five  days  after  the  completion, 
from  all  liens  that  might  accrue  against  the  same,  and  to  save  the 
owner  harmless  from  all  damages  therefrom,  in  an  action  by  the 
owner  to  recover  on  the  bond,  where  there  has  been  a  breach  by 
the  contractor,  fees  paid  by  the  owner  to  an  attorney  to  defend  lien 
suits  are  damages  proximately  caused  by  the  breach  of  the  agreement 
to  deliver  the  building  free  from  such  liens:  Klokke  v.  Raphael,  6 
Cal.  App.  Dec.  508,  96  Pac.  Rep.  392. 

Complaint  held  to  state  a  good  cause  of  action  on  general  demurrer, 
and  to  allege  sufficiently  payment  of  such  fees,  in  the  absence  of  a 
demurrer  on  that  specific  ground:    Klokke  v.  Raphael,  supra. 

Costs  recoverable  as  damages.  No  claim,  in  complaint  for  money 
expended  as  costs  in  such  suit,  but  only  for  attorneys'  fees,  the 
amount  of  such  costs  was  improperly  included  in  verdict:  Klokke  v. 
Raphael,   supra. 

Pleading  damages  under  contract  for  liquidated  damages:  See  Long 
Beacli   School  Dlst.  v.  Dodge,   135  Cal.  401,  405,   67  Pac.  Rep.  499. 

Alleging  damages:  Bryant  v.  Broadwell,  140  Cal.  490,  494,  74  Pac. 
Rep.  33. 

Alleging  prospective  profits:  See  McConnell  v.  Corona  City  W.  Co., 
149  Cal.  60,  65,  85  Pac.  Rep.  929. 

Bringing  action  sufliicient  demand:  See  Sims  v.  Petaluma  G.  Co. 
(Cal.,  Sept.  18,  1900),  62  Pac.  Rep.  300,  s.  c.  131  Cal.  656,  63  Pac. 
Rep.  1011. 

VVasIiington.  Demand  unnecessary;  complaint;  clearing  land:  See 
Stringham  v.  Davis,   23  Wash.  568,   63  Pac.  Rep.  230. 

'-"  Clancy  v.  Plover,  107  Cal.  272,  274,  40  Pac.  Rep.  394;  Mulcahy  v. 
Buckley,  100  Cal.  484,  490,  35  Pac.  Rep.  144;  Pacific  Mut.  L.  Ins.  Co.  v. 
Fisher,  106  Cal.  224,  234,  39  Pac.  Rep.  758.  But  see  Skym  v.  Weske 
Cons.  Co.   (Cal.,  Dec.  18,  1896),  47  Pac.  Rep.  116. 

See  §§  935  et  seq.,  post;  and  see  unconstitutional  clause  as  to  at- 
torneys' fees,  §  40,  ante. 

No  allegation  a.-*  to  attorneys'  fees  necessary;  See  Ah  Louis  v. 
Harwood,    140  Cal.   500,   507,   74  Pac.  Rep.   4  1. 

Colorado.  Attorneys'  fees  recoverable  without  allegation:  See 
Eagle  G.  M.  Co.  v.  Bryarly,  28  Colo.  262,  65  Pac.  Rep.  52,  54. 

New  Mexico.  Allegation  of  amount  of  attorneys'  fees  in  complaint 
unnecessary:  See  Armijo  v.  Mountain  E.  Co.,  11  N.  M.  235,  67  Pac.  Rep. 
726. 

Washington.  It  seems  that  if  sucli  allegation  is  inserted,  it  should 
not  be  stricken  out:    Griffith  v.  Maxwell,  20  Wash.  403,  55  Pac.  Rep.  571. 


§§722-724  mechanics'  liens.  648 

§  722.  Verification  of  complaint.  The  law  does  not  re- 
quire the  complaint  for  the  foreclosure  of  mechanics'  liens 
to  be  verified,  as  it  is  not  one  of  the  cases  enumerated  in  the 
code,  requiring  verification,  and  hence  the  sufficiency  of  the 
verification  thereto  is  immaterial  upon  a  default  judgment.^^^ 

§  723.  Joinder  of  causes  of  action  in  complaint.^-  Except 
as  otherwise  provided  in  the  chapter  on  mechanics'  liens 
on  real  property,  the  general  principles  laid  down  in  the 
code  are  applicable  to  this  subject  of  joinder. ^-^ 

Several  mining  claims.  Section  eleven  hundred  and 
ninety-five  ^-*  provides :  "  Any  number  of  persons  claiming 
liens  may  join  in  the  same  action."  In  connection  with  this 
matter,  the  court  has  said:  Section  eleven  hundred  and 
ninety-five  of  the  Code  of  Civil  Procedure,  in  reference  to 
joinder,  "  does  not  say  whether  the  lien  must  be  all  upon 
the  same  property,  or  simply  against  the  same  person.  We 
incline  to  the  former  construction.  .  .  .  Taking  the  several 
[mining]  claims  to  constitute  one  piece  of  property  for  the 
purposes  of  the  mechanic's-lien  law,  we  think  there  was  no 
misjoinder  of  causes  of  action."  "  If  several  placer  mining 
claims  are  adjoining  each  other  and  are  owned  by  one 
company  and  worked  as  one  mine,  the  liens  of  different 
persons  upon  different  portions  of  the  property  may  be 
joined  in  the  same  action,  the  counts  being  separately 
stated."  125 

§  724.    Same.    Designating  causes  of  action  separately. 

And  where  there  are  several  different  liens  united  in  the 
complaint,  which  may  be  done  under  section  eleven  hundred 

«»  Parke  &  L..  Co.  v.  Inter  Nos  O.  &  D.  Co.,  147  Cal.  490,  493,  82  Pac. 
Rep.  51. 

Compare:  "Verification  of  Claim,"  §410,  ante. 

Oregon.  Verification  by  attorney:  Willamette  Falls  Co.  v.  Riley,  1 
Oreg.  183. 

'-  See,  generally,  "Plaintiffs,"  §§  659  et  seq.,  ante. 

"3  Kerr's  Cyc.  Code  Civ.  Proc,  §§  427,  1198,  and  notes.  See  Remy  v. 
Olds,  88  Cal.  537,  26  Pac.  Rep.  355. 

"*  Kerr's  Cyc.  Code  Civ.  l»roc.,  §  1195. 

«5  Malone  v.  Big  Flat  G.  M.  Co.,  76  Cal.  578,  582,  18  Pac.  Rep.  772; 
Curnow  v.  Happy  Valley  B.  G.  Co.,  68  Cal.  262,  266,  9  Pac.  Rep.  149. 
See  Hooper  v.  Flood,  54  Cal.  218,  219. 


649  COMPLAINT.  §§  725, 726 

and  ninety-five  of  the  Code  of  Civil  Procedure,  there  is  a 
sufficiently  separate  statement  of  each  cause  of  action,  where 
there  is  a  distinct  statement  of  the  facts  as  to  each  lien,  and 
there  is  no  necessity  that  they  should  be  numbered,  or 
otherwise  formally  designated/-® 

§  725.  Same.  Reference  from  one  cause  of  action  to 
another.  Where  the  plaintiff  is  also  the  assignee  of  a  number 
of  other  lien  claims,  he  need  not  allege  in  full  the  cause  of 
action  upon  each  lien  in  a  separate  count;  and  if  the  first 
count  is  plainly  divided  into  distinct  paragraphs,  accurately 
designated  by  Roman  numerals,  from  I  to  X,  the  first 
paragraph  containing  certain  necessary  averments  as  to  the 
land,  and  the  subsequent  counts  commencing  by  referring 
to  said  paragraph  I,  and  expressly  making  said  paragraph 
a  part  of  each  subsequent  cause  of  action  as  if  incorporated 
therein,  the  judgment  should  not  be  reversed  because  para- 
graph I  was  not  written  in  full  in  each  of  the  other  counts; 
the  court  saying,  "  Such  pleading  may  be  slovenly,  but  it  is 
not  bad  enough  to  upset  a  judgment."  ^-' 

§  726.  Same.  Actions  that  may  be  united  in  one  com- 
plaint. It  is  proper  to  unite  a  cause  of  action  against  the 
contractor  with  a  foreclosure  suit  against  the  owner,  in 
order  to  prevent  a  multiplicity  of  suits.^-^     The  complaint 

"<  Booth  V.  Pendola,  88  Cal.  36,  42,  23  Pac.  Rep.  200,  25  Pac.  Rep. 
1101,  24  Pac.  Rep.  714. 

'"  Green  v.  Clifford,  94  Cal.  49,  52,  29  Pac.  Rep.  331.  See  Reading  v. 
Reading-,  96  Cal.  4.  6,  30  Pac.  Rep.  803. 

Colorado.  A  general  averment  as  to  service  of  notice  and  filing 
statement  may  be  made  at  the  beginning  or  end  of  the  complaint, 
without  inserting  it  in  each  cause  of  action  united  in  the  complaint: 
Rialto  M.  &  M.  Co.  v.  Lowell,  23  Colo.  253,  47  Pac.  Rep.  263. 

"^  Giant  P.  Co.  v.  San  Diego  F.  Co.,  78  Cal.  193,  198,  20  Pac.  Rep. 
419.     See  Cox  v.  W'estern  Pac.  R.  Co.,  ^7  Cal.  87,  90. 

See  "Parties,"  §§659  et  seq.,  ante. 

Montana.  And  a  personal  judgment  and  foreclosure  of  the  lien 
against  a  part-owner  may  in  like  manner  he  joined:  Davis  v.  Alvord, 
94  IT.  S.  545,  bk.  24  L.  ed.  283;  and  .'see  .^Ivord  v.  Hendrie,  2  Mont.  US- 
Davis  V.  Bilsland.  85  U.  S.   (18  Wall.)   659.  bk.  21  L.  ed.  969. 

New  Mexico.  Contra,  as  two  causes  of  action,  one  at  law,  the  other 
In  equity,  cannot  properly  be  joined:  Finane  v.  Las  Vegas  H  Co  3 
N.  M.  256,  5  Pac.  Rep.  725. 

AVaNliinKton.  Stot.^on  &  P.  M.  Co.  v.  iMcDonald.  5  Wash.  496.  ?,2  Pac. 
Rep.   108.     Provided  by  Balllnger's  Ann.  Laws,  §5911;   but  previously 


§  727  mechanics'  liens.  650 

of  a  subclaimant  is  not  demurrable  for  uniting  two  causes 
of  action;  one  for  work  and  material . furnished  as  a  sub- 
contractor at  the  request  of  the  contractor,  and  one  for  the 
same  at  the  request  of  the  owner.^^^  But  an  action  to  enforce 
a  lien  on  the  property,  or  an  action  for  a  personal  judgment 
against  the  owner,  for  the  value  of  materials  furnished  may 
not  be  joined  with  an  action  against  the  owner  as  grantee 
to  set  aside  a  conveyance  on  the  ground  of  fraud  on 
creditors.^^° 

§  727.  Same.  Objections,  how  raised.  The  objection  as 
to  misjoinder,  however,  is  waived,  unless  specially  taken  by 
demurrer  or  answer.^^^  Objection  that  causes  of  action  are 
not  separately  stated  is  to  be  made  by  motion,  and  not  by 
demurrer  for  misjoinder.^'^ 

contra:  Eisenbels  v.  Wakeman,  3  Wash.  534,  28  Pac.  Rep.  923.  See 
Hildebrandt  v.  Savage,  4  Wash.  524,  30  Pac.  Rep.  643,  32  Pac.  Rep.  109, 
and  dissenting-  opinion,  Tacoma  L.  &  Mfg.  Co.  v.  Wolff,  7  Wash.  478, 
35  Pac.  Rep.  115,  755. 

See  "  Decree,"  §§  903  et  seq.,  post. 

'=»  Quale  V.  Moon,  48  Cal.  478,  482;  Giant  Powder  Co.  v.  San  Diego 
F.  Co.,  78  Cal.  193,  199,  20  Pac.  Rep.  419;  Wood  v.  Oakland  &  B.  T.  Co., 
107  Cal.  500,  502,  40  Pac.  Rep.  806. 

Colorado.  Joinder  of  cause  of  action  by  vendor  of  goods  with 
action  on  assigned  claim:  See  Sickman  v.  Wollett,  31  Colo.  58,  71  Pac. 
Rep.  1107,  1108. 

13"  Macondray  v.  Simmons,  1  Cal.  393,  395. 

Objection  must  be  taken  by  ans^rer  or  demurrer  to  the  misjoinder, 
or  it  is  waived:  Macondray  v.  Simmons,  supra.  See  Weimer  v.  Smith, 
4  Utah  238,  245,  9  Pac.  Rep.  293. 

12'  Macondray  v.  Simmons,  1  Cal.  393,  395;  Cox  v.  Western  Pac.  R. 
Co.,  47  Cal.  87,  90. 

Oklahoma.  See  El  Reno  E.  Co.  v.  Jennison,  5  Okl.  774,  50  Pac.  Rep. 
144  (joinder  of  cause  on  express  contract  and  on  quantum  meruit  for 
articles  not  provided  for  in  tlie  express  contract). 

'"-  Cause  of  action  to  foreclose  a  lien  against  owner,  and  action  to 
recover  personal  judgment  against  grantee  of  the  owner,  who  had 
assumed  tlie  debt  and  agreed  to  pay  it:  San  Francisco  P.  Co.  v.  Fair- 
field, 134  Cal.  220,  226,  66  Pac.  Rep.  255. 

AVashingrton.  Motion  to  have  causes  of  action  stated  separately 
against  same  property,  improper;  motion  to  make  more  definite  and 
certain,  proper:  See  Fitch  v.  Applegate,  24  W'ash.  25,  64  Pac.  Rep.  147. 


651  DEMURRER.  §  "J^SS 


CHAPTER    XXXVI. 

DEMURRER. 

§  728.     Demurrer.     Generally. 

§  729.     General   demurrer. 

§  730.  Same.  Filing  claim  of  lien.  Time  of  completion  of  build- 
ing. 

§  731.     Same.     Cessation  from  work. 

§  732.  Same.  Claim  of  lien  not  setting  forth  plans  and  specifica- 
tions. 

§  733.  Same.  Variance  between  claim  as  exhibit  and  body  of  com- 
plaint. 

§  734.     Special  demurrer.     Misjoinder  of  parties. 

§  735.  Same.  Ambiguity  and  uncertainty.  Conflict  between  claim 
as  exhibit  and  body  of  complaint. 

§  736.  Same.  Conflict.  Bond  as  exhibit  and  allegations  of  com- 
plaint. 

§  737.     Same.     Conclusions  of  law. 

§  728.  Demurrer.^  Generally.  The  general  rules  of  law 
that  are  applicable  to  demurrers  will  not  be  considered  in 
this  chapter,  and  the  plan  of  treatment  elsewhere  ^  outlined 
will  not  be  repeated.   ' 

^  Alleging:  for  first  time  upon  aiipeal,  without  special  demurrer, 
failure  to  allege  securing  certificate  of  architect:  See  Wyman  v. 
Hooker,  2  Cal.  App.  36,  38,  83  Pac.  Rep.  79. 

Demurrer  admittinie:  ownership:  See  Bryan  v.  Abbott,  131  Cal.  222, 
224,  63  Pac.  Rep.  363. 

W'aiver  by  failure  to  demur:  See  "Misjoinder,"  §§723  et  seq.,  ante; 
"  Prevention  of  Performance,  Non-payment,"  §§  679  et  seq.,  ante.  And 
see  "Complaint.  In  General,"  §§670  et  seq.,  ante;  "Appeal,"  §§956  et 
seq.,  post. 

Demurrer  to  cross-complaint:  See  §§  759  et  seq.,  post. 

Oklalioma.  Answer  superseding  demurrer  filed  on  same  day:  See 
Ryndak  v.  Seawell,  13  Okl.  737,  76  Pac.  Rep.  170. 

Failure  to  allege  use  of  materials;  defect  waived:  See  Ryndak  v. 
Seawell,   13  Okl.  737,  76  Pac.  Rep.  170. 

Wa.shington.  Demurrer  to  complaint  alleging  withdrawal  of  third 
party  from  work,  but  not  alleging  owner's  knowledge  or  consent  to 
such  withdrawal:  See  Cochran  v.  Yoho,  34  Wash.  238,  75  Pac.  Rep. 
815. 

Wyomins-  Harmless  error  in  overruling  demurrer  as  to  plea  of 
payment:  See  Davis  v.  Big  Horn  L.  Co.,  14  Wyo.  517.  85  Pac.  Rep. 
980. 

=>  See  §  670,  ante. 


§§  729, 730  mechanics'  liens.  652 

§  729.  General  demurrer.^  It  is  a  general  rule  that  if 
the  complaint  states  a  cause  of  action,  it  is  not  subject  to 
general  demurrer  because  of  an  ineffectual  attempt  to  state 
another  cause  of  action  in  the  same  or  another  count.* 
Thus  — 

Money  judgment,  and  foreclosure  of  lien.  A  complaint 
Avhich  alleges  a  sufficient  cause  of  action  for  the  recovery 
of  money  against  the  owner  is  not  subject  to  demurrer  on 
the  ground  that  it  does  not  state  facts  sufficient  to  consti- 
tute a  cause  of  action  against  the  owner,  because  of  the 
fact  of  an  ineffectual  effort  to  state  in  the  complaint  a 
cause  of  action  for  the  foreclosure  of  a  lien  to  secure  the 
same  money. ^ 

§  730.  Same.  Filing  claim  of  lien.''  Time  of  completion 
of  building."  Where  the  complaint  is  merely  uncertain,  a 
general  demurrer  will  not  lie.  Thus  if  the  complaint  to 
foreclose  a  subclaimant's  lien  upon  the  property  alleges 
that  the  structure  was  completed  "  on  or  about "  a  date 
mentioned,  it  is  not  so  indefinite  and  uncertain  as  to  ren- 
der the  complaint  defective  as  against  general  demurrer, 
especially  where  it  is  further  alleged  that  the  claim  of  lien 
was  filed  "  within  thirty  days  after  the  completion  of  the 
building  and  structure."  ^ 

^  Oklahoma.  Failure  to  aUege  attorney's  fee  not  reached  by  gen- 
eral demurrer:  See  Savage  v.  Dinkier,  12  Okl.  463,  72  Pac.  Rep.  366. 

Washington.  Failure  to  allege  incorporation  of  defendant,  not  to 
be  raised  by  general  demurrer:  See  Sly  v.  Palo  Alto  G.  M.  Co.,  28  Wash. 
485,  68  Pac.  Rep.  871. 

*  One  count  stating;  good  cause  o£  action,  demurrer  to  second  cause 
not  considered  on  appeal:  See  Macomber  v.  Bigelow,  126  Cal.  9,  12,  58 
Pac.  Rep.  312. 

General  demurrer  to  be  overruled  «hen  complaint  good  as  to  all  but 
one  payment,  in  suit  to  recover  balance:  Knowles  v.  Baldwin,  125  Cal. 
224,  226,  227,  57  Pac.  Rep.  988. 

s  Cox  V.  Western  Pac.  R.  Co.,  47  Cal.  87,  90. 

See  "  .Joinder,"  §§  723  et  seq.,  ante. 

*  See  §§  416  et  seq.,  ante. 

Washington.  See  Lee  v.  Kimball  (Wash.,  March  12,  1907),  88  Pac. 
Rep.  1121. 

'  See  §§  334  et  seq.,  ante. 

»  W"ood  V.  Oakland  and  Berkeley  R.  T.  Co.,  107  Cal.  500,  503,  40  Pac 
Rep.  806. 

See  "  Complaint,"   §§  677,   706  et  s£q.,  ante. 


653  DEMURRER.  §§  731-733 

§  731.  Same.  Cessation  from  work.*"  Where,  in  an  action 
to  foreclose  a  material-man's  lien,  the  complaint  averred 
that  the  structures  were  in  an  unfinished  condition,  that 
work  ceased  thereon  "  on  or  about  the  first  day  of  April, 
1894,  and  has  not  been  resumed,"  and  that  plaintiff's  claim 
of  lien  was  filed  and  recorded  ]May  8,  1894,  while  a  cessa- 
tion of  work  on  April  9th  might  be  within  the  meaning  of 
the  phrase  "  on  or  about  the  first  day  of  April,"  3'et  the 
allegation  as  to  the  time  of  cessation  is  uncertain,  and  subject 
only  to  a  special  demurrer  on  that  ground,  and,  in  the 
absence  of  such  demurrer,  the  plaintiif  may  prove  that  the 
work  ceased  on  the  first  day  of  April,  1894,  and  the  complaint 
is  sufficiently  certain  as  to  the  continuous  duration  of  the 
cessation  of  the  work  for  more  than  thirty  days  before  the 
filing  for  record  of  the  claim  of  lien,  and  that  it  was  filed 
within  thirty  days  after  the  constructive  completion  of  the 
buildings.^" 

§  732.  Same.  Claim  of  lien  not  setting  forth  plans  and 
specifications.  A  subcontractor's  complaint  which  avers  that 
the  claim  of  lien  stated  that  he  entered  into  a  contract  under 
which  he  was  to  do  all  the  painting,  staining,  varnishing, 
and  tinting,  all  necessary  materials  to  be  furnished  by  him, 
"  as  specified  in  the  plans  and  specifications  "  of  the  build- 
ings, is  sufficient,  at  least  where  a  general  demurrer  is  inter- 
posed, and  against  the  objection  that  the  claim  does  not 
set  forth  the  plans  and  specifications  of  the  original  con- 
tract in  regard  to  the  painting.^^ 

§  733.  Same.  "Variance  between  claim  as  exhibit  and 
body  of  complaint.^-  Where  the  complaint  avers  that  the 
plaintiff  was  to  be  paid  a  certain  sum  for  work  only,  Avhile 
his  claim  of  lien,  set  forth  in  the  complaint,  showed  that 

»  See  §§  354  et  seq.,  ante. 

"  San  Joaquin  L.  Co.  v.  Welton,  115  Cal.  1,  5,  46  Pac.  Rep.  735,  1057. 

"  Slight  V.  Patton,  96  Cal.  384,  387,  31  Pac.  Rep.  248;  but  it  wa.s  said 
that  it  was  not  necessary  to  determine  whether  a  special  demurrer  on 
this  ground   should  have  been  sustained. 

"  See  §§  711  et  seq.,  ante. 


§§734,735  mechanics'  LIENS.  654 

he  was  to  be  paid  such  sum  for  work  and  materials  furnished, 
a  general  demurrer  should  be  sustained.^^ 

§  734.  Special  demurrer.  Misjoinder  of  parties."  A  de- 
murrer lies  for  misjoinder  of  parties,  where  a  mere  agent 
is  joined  with  the  owner  in  an  action  to  foreclose,  and  an 
error  of  the  court  in  failing  to  overrule  such  demurrer  is 
not  cured  b.y  a  subsequent  finding  of  the  court  that  the 
materials  were  furnished  to  the  person  as  a  contractor,  and 
not  as  a  mere  agent. ^^ 

§  735.  Same.  Ambiguity  and  uncertainty.  Conflict  be- 
tween claim  as  exhibit  and  body  of  complaint."  Where,  in 
an  action  to  enforce  a  lien  on  the  property,  some  of  the 
allegations  of  the  complaint  are  inconsistent  with  the  state- 
ments contained  in  the  claim  of  lien,  a  copy  of  which  is 
attached  to  and  made  a  part  of  the  complaint,  a  demurrer 
for  ambiguity  and  uncertainty  should  be  sustained.^^ 

"  Wagner  v.  Hansen,  103  Cal.  104,  106,  37  Pac.  Rep.  195. 

See  "Variances,"  §§835  et  seq.,  post. 

"  See  §§  659  et  seq.,  and  §§  723  et  seq.,  ante. 

^  Hooper  v.  Flood,  54  Cal.  218,  220. 

See  "Owner,"  §§687  et  seq.,  ante. 

NevF  Mexico.  "  It  is  a  well-settled  rule  of  equity  pleading,  that  a 
misjoinder  of  parties  as  defendants  can  be  taken  advantage  of  only 
by  the  parties  improperly  joined,  or,  at  most,  by  such  parties  as  may 
be  injuriously  affected  by  such  misjoinder."  And  where  parties  demur 
for  misjoinder,  and  subsequently  obtain  a  dismissal  of  the  bill  as  to 
parties  misjoined,  they  are  not  in  a  position  to  complain:  Post  v. 
Miles,  7  N.  M.  317,  34  Pac.  Rep.  586. 

Misjoinder  not  aflfecting  objecting  party;  See  Armijo  v.  Mountain 
E.  Co..  11  N.  M.  235,  67  Pac.  Rep.  726,  729. 

Oregon.  Waiver  of  misjoinder  by  failure  to  demur  or  answer:  Os- 
born  V.  Logus,  28  Oreg.  302,  38  Pac.  Rep.  190,  42  Id.  997. 

'«  See  §§  711,  713,  ante. 

"  Prazer  v.  Barlow,  63  Cal.  71,  72;  Palmer  v.  Lavigne,  104  Cal.  30,  33. 
37  Pac.  Rep.  775;  Malone  v.  Big  Flat  G.  M.  Co.,  76  Cal.  578,  581,  18  Pac. 
Rep.  772;  T\^agner  v.  Hansen,  103  Cal.  104,  106,  37  Pac.  Rep.  195.  See 
Blasingame  v.  Home  Ins.  Co.,  75  Cal.  633.  637,  17  Pac.  Rep.  925. 

Uncertainty  in  tlie  complaint  waived  by  absence  of  objection  in 
lower  court;  Parke  &  L.  Co.  v.  Inter  Nos  O.  &  D.  Co.,  147  Cal.  490,  493, 
82  Pac.  Rep.  51. 

Contract  alleged  to  be  made  "with  the  said  defendants,"  thereupon 
naming  one  defendant,  held  good  against  special  demurrer:  See 
Georges  v.  Kessler.  131  Cal.  183.   185.   63  Pac.  Rep.  466. 

Demurrer  for  ambiguity;  husband  and  wife  parties  to  contract:  See 
Georges  v.  Kessler,   131  Cal.   183,  185,   63  Pac.  Rep.  466. 


655  DEMURRER.  §§  736, 737 

§  736.  Same.  Conflict.  Bond  as  exhibit  and  allegations 
of  complaint. 1*  Where,  iu  an  action  on  a  contractor's  bond, 
the  complaint  averred  that  the  principals  executed  the  bond, 
and  the  copy  of  the  bond  attached  and  made  part  of  the 
complaint  shows  that  it  was  not  signed  by  the  principals, 
the  complaint  is  subject  to  a  special  demurrer  on  the  ground 
of  ambiguity.^* 

§  737.  Same.  Conclusions  of  law.  Where  point  is  made 
against  a  subclaimant's  complaint  that  there  is  no  averment 
as  to  what  was  the  contract  price  between  the  owner  and 
contractors,  or  that  there  was  any  express  agreement  to  pay 
anything,  or  as  to  what  was  the  reasonable  value  of  the 
work  to  be  done,  or  anything  to  show  that  any  sum  ever 
became  due  under  the  original  contract,  and  that  the  al- 
legation that  there  was  due  and  owing  an  amount  in  excess 
of  the  contract  price  was  a  statement  of  conclusions  of  law, 
it  should  be  tested  by  demurrer,  and,  of  course,  if  so  tested, 
would  be  held  insufficient,-" 

Demurrer  for  uncertainty;  action  on  contractor's  bond;  defects  not 
accurately  stated;  bUl  of  particulars  proper:  See  Long  Branch  School 
Dist.  V.  Dodge,  135  Cal.  401,  407,  67  Pac.  Rep.  499. 

Colorado.  Uncertainty  waived  by  general  demurrer:  See  Gutshall 
V.  Kornaley   (Colo.,  Dec.  3,  1906),  88  Pac.  Rep.  158. 

AVashington.  Incorporating  in  subsequent  causes  of  action  para- 
graphs of  previous  cause  of  action,  not  reached  on  demurrer:  See  Sly 
V.  Palo  Alto  G.  M.  Co..  28  Wash.  485,  68  Pac.  Rep.  871. 

"  See  §  735,  ante. 

"  Kurtz  V.  Forquer,   94  Cal.   91,   94,   29  Pac.  Rep.  413    (dictum). 

Variance  immaterial  after  trial  on  merit.s,  where  defendants  not 
prejudiced  thereby:  Kurtz  v.  Forquer,  .supra,  p.  95.  See  Rainsford  v. 
Massengale.  5  Wyo.  1,  9,  35  Pac.  Rep.  774. 

Special  demurrer  tliat  allegation  of  complaint  is  inconsistent  witii 
exhibit  attached,  without  stating  in  what  respect,  not  regarded  on 
appeal:  See  Georges  v.  Kessler,  131  Cal.  183,  185,  63  Pac.  Rep.  466. 

2"  Russ  L.  &  M.  Co.  v.  Garrettson,  87  Cal.  589,  592,  25  Pac.  Rep.  747. 

Ati  to  materials  furnished,  etpecial  demurrer,  see  §§699  et  seq.,  ante. 


§  738  mechanics'  liens.  "  656 


CHAPTER    XXXVn. 

ANSWER,  AND  OTHER  PLEADINGS. 

§  738.  Answer.     In  general. 

§  739.  Same.  General  denial. 

§  740.  Same.  Denials  of  conclusions  of  law. 

§  741.  Same.  Negative  pregnant. 

§  742.  Same.  Denials  on  information  and  belief. 

§  743.  Same.  Exception  to  rule. 

§  744.  Same.  Evasive  denials. 

§  745.  Same.  Deficiencies  of  complaint  cured  by  answer. 

§  746.  Same.  Special  defenses. 

§  747.  Same.  Neglect  of  contractor  to  supply  materials    and    pro- 
ceed with.  work. 

§  748.  Same.  Abandonment. 

§  749.  Same.  Payments  made  by  owner. 

§  750.  Same.  Void  contract  as  defense. 

§  751.  Same.  Void  contract  no  defense  in  personam. 

§  752.  Same.  Mechanic's  lien  as  defense  to  mortgage  foreclosure. 

§  753.  Same.  Counterclaim.     Payments. 

§  754.  Same.  Judgment  and  costs  in  action  against  agent. 

§  755.  Same.  Orders  paid. 

§  756.  Same.  Damages. 

§  757.  Same.  Future  repairs. 

§  758.  Same.  Damages  for  delay. 

§  759.  Cross-complaint. 

§  760.  Same.  Setting  up  mechanic's  lien  in  mortgage  foreclosure. 

§  761.  Same.  Damages. 

§  762.  Same.  Payments. 

§  763.  Supplemental  answer.     Decree  of  foreclosure  of  mortgage. 

§  738.  Answer.^  In  general.  Where  defendants  have 
no  separate  or  special  defense,  it  seems  that  they  may  join 
in  a  common  answer.^ 

1  Supplemental  ansvrer;  See  §  763,  post. 

2  ^\  estern  L.  Co.  v.  Phillips,  94  Cal.  54,  56,  29  Pac.  Rep.  328  (minor 
defendants). 

Allegation    o£    amount    due,    admitted    by    ansiver,    conclusive;    and 

finding  to   contrarj-   disregarded:    Gamache   v.   South    School   Dist.,    133 
Cal.   145,  148,   65  Pac.  Rep.   301. 

Montana.  Allegations,'  once  denied,  need  not  be  denied  again, 
although  several  times  averred  in  complaint:  Boucher  v.  Powers,  29 
Mont.   342,   74  Pac.   Rep.   942. 


657  ANSWER,   AND  OTHER   PLEADINGS.  §§  739-741 

§  739.  Same.  General  denial.  Under  the  familiar  rule 
often  laid  down  and  illustrated,  a  general  denial  puts  in 
issue  onl}^  issuable  facts.  Thus  where  the  plaintiff  avers 
that  the  defendant  has  or  claims  some  interest  in  the  land, 
and  that  the  same  is  subject  to  plaintiff's  lien,  this  allegation 
being  wholly  immaterial,  except  in  so  far  as  it  shows  that  he 
is  a  necessary  party  to  the  action,  the  general  denial  puts 
in  issue  only  the  fact  that  it  is  subject  to  the  plaintiff's  lien.^ 

A  breach  of  the  original  contract  cannot  be  shown  under 
a  general  denial.* 

§  740.  Same.  Denials  of  conclusions  of  law.  Denials 
of  mere  conclusions  of  law  alleged  in  the  complaint  are 
insufficient.  Thus  the  denial  that  the  plaintiff  has  a  lien,^ 
or  that  a  claimant  was  entitled  to  a  lien,"  or  that  the 
plaintiff  has  complied  with  the  requirements  of  the  pro- 
visions of  chapter  two,  title  four,  part  three,  of  the  Code  of 
Civil  Procedure,  relating  to  mechanics'  liens,"  is  insufficient. 

§  741.  Same.  Negative  pregnant.  A  negative  pregnant, 
under  the  familiar  rule,  should  be  avoided.  Thus  where  the 
complaint  avers  that  the  plaintiff  performed  labor  on  a  mine 
at  the  request  of  the'defendant,  the  answer,  denying  that  the 
labor  was  performed  at  the  request  of  the  defendant,  is  not 
a  denial  that  the  work  was  performed  on  the  mine.^ 

Assignment.  Where  the  answer  attempts  to  deny  the 
assignment  to  and  ownership  of  the  claim  in  plaintiff,   as 

Failure  to  deny  payinent  of  liens  alleged  to  be  paid  by  owner 
under  original  contract:  See  Wagner  v.  St.  Peter's  Hospital,  32  Mont. 
206,  79  Pac.  Rep.   1054. 

3  Elder  v.  Spinks,  53  Cal.  293,  294, 

But  see  "Pleading  Priorities  and  Others  Interests,"  §§  715,  716,  ante. 

*  McGuire  v.  Quintana,  52  Cal.  427,  428.  See  Michalitschke  Bros.  & 
Co.  V.  Wells,  Fargo  &  Co.,  118  Cal.  683,  690,  50  Pac.  Rep.  847. 

•'■  Bradbury  v.  Cronise,  46  Cal.  287,  289;  Curnow  v.  Happy  Valley 
B.  G.  &   H.  Co.,  68  Cal.   262,   266,   9  Pac.  Rep.   149. 

Montana.  Merrigan  v.  English,  9  Mont.  113,  22  Pac.  Rep.  454,  5 
L.  R.  A.  837    (also,  denial  of  indebtedness). 

•  Brill  V.  De  Turk,  130  Cal.  241,  244.  62  Pac.  Rep.  462. 

'  Curnow  v.  Happy  Valley  B.  G.  &  H.  Co.,  68  Cal.  262,  266  9  Pac 
Rep.  149. 

«  Bradbury  v.  Cronise,  46  Cal.  287,  289.  See  Lingard  v.  Beta  Tlieta 
Pi  Assoc.  (Cal.,  Feb.  2,  1899),  56  Pac.  Rep.  58  (time  of  filing  claim,  and 
its  sufficiency). 

Mech.  Liens  —  42 


§  742  mechanics'  liens.  658 

alleged  in  the  complaint,  and  such  denial  is  pregnant  with 
an  admission  of  those  facts,  it  is  unnecessary  to  introduce 
any  evidence  on  the  subject  of  the  assignment.® 

Amount  due.  So  where  the  answer  does  not  deny  that  a 
valid  contract  was  entered  into  between  the  parties,  and 
admitted  that  a  certain  sum  was  due,  and  also  denies  "  that 
any  sum  was  due  from  her  to  said  B.  on  the  sixth  day  of 
July,  1891,  or  at  any  other  time,  or  at  all,  pursuant  to  said 
contract,  or  otherwise,"  it  must  be  treated  as  a  denial  only 
that  any  sum  of  money  was  due  under  the  contract.^" 

Value  of  labor.  But  a  denial  that  the  value  of  labor  was 
not  over  a  certain  sum,  less  than  that  averred  in  the  com- 
plaint, is  a  denial  that  its  value  was  as  averred  in  the 
complaint. ^^ 

§  742.     Same.     Denials  on  information  and  belief.     The 

defendant  is  not  at  liberty  to  deny  on  information  and 
belief,^-  nor  to  answer  an  allegation  alleging  that  he  has 
no  information  or  belief  upon  the  subject  sufficient  to  enable 

»  Newell  V.  Brill,  2  Cal.  App.  61,  U,  83  Pac.  Rep.  76. 

10  Schmld  V.  Busch,  97  Cal.  184,  187,  31  Pac.  Rep.  893. 

AVashington.  So  the  denial  of  indebtedness  in  a  certain  sum 
claimed  is  an  admission  of  a  less  sum:  Rourk  v.  Miller,  3  Wash.  73, 
27  Pac.  Rep.  1029. 

"  Way  V.  Oglesby,  45  Cal.  655.  See  Goddard  v.  Fulton,  21  Cal.  430, 
436;  Robinson  v.  Merrill,  87  Cal.  11,  14,  25  Pac.  Rep.  162;  Burris  v. 
People's  Ditch  Co.,  104  Cal.  248,  253,  37  Pac.  Rep.  922. 

^  Hagman  v.  Williams,  88  Cal.  146,  150,  25  Pac.  Rep.  1111. 

Answer  must  be  positive  when  matters  presumptively  witliin  his 
knowledge:  Curtis  v.  Richards,  9  Cal.  33,  37;  Humphreys  v.  McCall,  9 
Cal.  59,  62,  70  Am.  Dec.  621;  San  Francisco  Gas  Co.  v.  San  Francisco, 
9  Cal.  453,  473;  McCormick  v.  Bailey,  10  Cal.  230,  232;  Ord  v.  Steamer 
Uncle  Sam,  13  Cal.  369,  371;  Brown  v.  Scott,  25  Cal.  189,  196;  Davanay 
V.  Eggenhoff,  43  Cal.  395,  397;  Walker  v.  BufCandeau,  63  Cal.  312,  314; 
Loveland  v.  Garner,  74  Cal.  298,  300,  15  Pac.  Rep.  844;  Hagman  v. 
Williams,  88  Cal.  146,  150,  25  Pac.  Rep.  1111;  Gribble  v.  Columbus 
B.  Co.,  100  Cal.  67,  75,  34  Pac.  Rep.  527;  Mulcahy  v.  Buckley,  100  Cal. 
484,  489,  35  Pac.  Rep.  144;  Weill  v.  Crittenden,  139  Cal.  4S8,  490,  73 
Pac.  Rep.  238.  See  Hanna  v.  Barker,  6  Colo.  308;  State  ex  rel.  Milsted 
V.  Butte  City  W.  Co.,  18  Mont.  199,  203,  44  Pac.  Rep.  966,  56  Am.  St. 
Rep.  575;  Lay  G.  M.  Co.  v.  Falls  etc.  Mfg.  Co.,  91  N.  C.  75;  In  re  Mills's 
Estate,  40  Oreg.  424,  433,  67  Pac.  Rep.  107;  Bartow  v.  Northern  Assur. 
Co.,  10  S.  D.  132,  136,  72  N.  W.  Rep.  86;  Thompson  v.  Sken,  14  Utah  209, 
214,  46  Pac.  Rep.  1103. 

See  notes   70   Am.   Dec.   629;    88  Am.   Dec.   95;    97  Am.   Dec.    231. 

Where  matters  not  presumably  '(vitliin  Ivno^vledge  of  defendant, 
the  rule  is  otherwise:  See  Vassault  v.  Austin,  32  Cal.  597,  607;  Read 
V.  Buffum,  79  Cal.  77,  21  Pac.  Rep.  555,  12  Am.  St.  Rep.  131;  Hagman  v. 
Williams,  88  Cal.  146,  150;  25  Pac.  Rep.  1111;  Etchas  v.  Orena,  121  CaL 


659  ANSWER,   AND  OTHER  PLEADINGS.  §  743 

him  to  answer  it,  and  placing  his  denial  on  that  ground,  if 
he  ma}^  be  presumed  to  know,  or  when  he  is  aware,  before 
answering,  that  he  has  the  means  of  ascertaining,  whether 
or  not  such  allegation  is  true.^^ 

Recorded  claim  of  lien.  This  is,  for  instance,  the  rule 
where  it  appears  that  the  defendant  knew  before  answering 
that  he  could  certainly  ascertain  whether  or  not  plaintiff  had 
recorded  his  claim  of  lien,  as  alleged  in  the  complaint,  by 
examining  a  public  record  in  the  city  and  county  in  which 
his  lots,  upon  which  the  lien  in  claimed,  were  situated.^* 
So  an  allegation  of  the  complaint,  in  due  form,  that  plaintiff 
filed  and  recorded  his  claim  of  lien  in  the  office  of  the 
recorder  of  the  county,  "  in  words  and  figures  following," 
and  then  setting  forth  a  copy  of  his  claim  of  lien,  is  not 
put  in  issue  by  a  denial  of  the  answer  upon  the  ground 
that  the  defendant  has  no  information  or  belief  upon  the 
subject  sufficient  to  enable  him  to  answer  the  same.^^ 

§  743.  Same.  Exception  to  rule.  This  rule,  however, 
does  not  apply  to  a  denial  of  the  sufficiency  of  the  recorded 
claim  of  lien  in  an  action  to  foreclose  a  mechanic's  lien, 
where  the  complaint  alleges  that  the  claim  of  lien  was  duly 
recorded,  and  states  its  contents  substantially  in  the  lan- 
guage of  the  statute;  and  if  the  recorded  claim  of  lien  is 
inartificially  drawn,  and  not  in  the  language  of  the  com- 
plaint, a  denial  in  the  answer,  upon  information  and  belief, 
that  the  claim  contains  the  necessary  facts,  is  sufficient  to 
raise  an  issue  as  to  the  alleged  claim  of  lien/" 

270,  53  Pac.  Rep.  798;  Oreg-onian  etc.  Co.  v.  Oregon  etc.  Co..  10  Sawy. 
C.  C.  468.   22   Fed.  Rep.   247. 

Denial  for  want  of  information  is  bad  as  to  matters  presumably 
Within  tlie  defendant's  knowledge:  Curtis  v.  Richards,  9  Cal.  33,  38; 
Weill  V.  Crittenden,  139  Cal.  488,  490,  73  Pac.  Kep.  238;  Peacock  v. 
United  States,  125  Fed.  Rep.  586. 

Montana.  Denial  of  knowledge  or  information  sufficient  to  form 
belief  as  to  the  existence  of  public  records:  See  McEwen  v.  Montana 
P.  &  P.  Co.   (Mont.,  June  3,  1907),  90  Pac.  Rep.  359,  360. 

"  Mulcahy  v.   Buckley,    100   Cal.   484.   487,    35   Pac.   Rep.   144. 

"  Mulcahy   v.   Buckley,    100  Cal.   484,   487,  35   Pac.   Rep.    144. 

WaHliin^ton.  But,  see  contra:  Cowie  v.  Ahrenstedt,  1  Wash.  416, 
25  Pac.  Rep.  458. 

"  Mulcahy  v.  Buckley,  100  Cal.  484,  487,  35  Pac.  Rep.   144. 

"  Hagman  v.  Williams,  88  Cal.  146,  150,  25  Pac.  Rep.  1111. 


§§  74-1-746  mechanics'  liens.  660 

§  744.  Same.  Evasive  denials.  AVliere  the  complaint 
avers  "  that  plaintiff  performed  work  and.  labor  on  the  prop- 
erty as  a  miner,"  and  the  answer  admits  the  ownership  of  the 
property  in  the  defendant,  and  the  employment  of  plaintiff 
by  the  defendant's  superintendent,  and  the  answer  alleges 
that  "  defendant  is  not  sufficiently  informed  to  admit  that 
the  plaintiff  performed  work  and  labor  as  a  miner  upon 
the  property  of  defendant,  and  therefore  defendant  denies 
said  allegation,"  the  words  "  as  a  miner  "  render  the  denial 
equivocal  and  evasive,  and  raise  no  issue  as  to  the  identity 
of  the  property  upon  which  the  work  was  done.^'- 

§  745.     Same.     Deficiencies  of  complaint  cured  by  answer. 

Certain  deficiencies  of  the  complaint  may  be  cured  by  allega- 
tions of  the  answer.  Thus  where  the  complaint  in  an  action 
to  foreclose  a  subclaimant's  lien  upon  the  property,  under 
a  valid  contract,  did  not  aver  that  any  money  was  due  to 
the  contractor,  but  the  answer  presented  that  issue,  under 
section  five  hundred  and  eighty,^^  the  court  may  grant 
any  relief  consistent  with  the  case  made  by  the  complaint 
and  embraced  within  the  issues.^* 

§  746.  Same.  Special  defenses.-*^  Notice  by  the  owner 
that  he  would  not  be  responsible  for  the  construction  of  the 
building,   under   section   eleven  hundred   and   ninety-two,-^ 

"  Curnow  v.  Happy  Valley  B.  G.  &  H.  Co.,  68  Cal.  262,  265,  9  Pac. 
Rep.  149. 

's  Kerr's  Cyc.  Code  Civ.  Proc,  §  580,  and  note. 

"  O'Donnel  v.  Kramer,  65  Cal.  353,  4  Pac.  Rep.  204  (a  certain  amount 
was,  however,  actually  found  due). 

=»  See  "Rights  of  Owner,"  §§510  et  seq.,  ante;  "Obligations  of 
Original  Contractor,"  §§64  et  seq.,  ante;  "Material-man,"  §102,  ante; 
"Laborers,"  §§  117  et  seq.,  ante;  "Cumulative  Remedies,"  §§  638  et  seq., 
ante;  "Performance  of  the  Contract,"  §§334  et  seq.,  ante;  "Com- 
plaint,"  §§  670  et  seq.,  ante. 

>evada.  Lack  of  authority  of  alleged  agent  should  be  pleaded: 
Dickson  v.  Corbett,  11  Nev.  277. 

21  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1192. 

Answer  alleging'  credit  given  by  laborer  in  a  mine  to  person  in 
possession  under  contract  with  owner  to  improve  and  develop,  a  suf- 
ficient defense:  See  Reese  v.  Bald  Mt.  Consol.  G.  M.  Co.,  133  Cal.  285, 
290,  65  Pac.  Rep.  578. 

Release  from  liability  at -time  of  signing  contract  sufficient  defense: 
See  Rauer  v.  Fay,  128  Cal.  523,  525,  61  Pac.  Rep.  90. 


6G1  ANSWER,    AND  OTHER  PLEADINGS.  §  747 

is  a  matter  of  defense,  to  be  specially  pleaded.--  So  another 
action  pending;  -^  or  a  breach  of  a  valid  original  contract;  •* 
or  the  non-completion  of  the  building  according  to  the  con- 
tract ;  ^^  or  the  subcontracting  for  materials  without  the 
consent  of  the  owner ;  -•*  or  a  defense  that  the  plaintiffs, 
claimants,  had  guaranteed  performance  of  the  statutory 
original  contract,-"  —  must  be  specially  pleaded  in  the 
answer. 

§  747.  Same.  Neglect  of  contractor  to  supply  materials 
and  proceed  with  work.  Where  a  valid  uou-statutory  origi- 
nal contract  provided  "  that  should  said  contractor  refuse 
or  neglect  to  supply  a  sufficiency  of  materials,  the  owner 
shall  have  power  to  provide  materials  and  workmen  after 
three  daj's'  notice  in  writing  being  given  to  finish  the  said 
work,  and  the  expense  will  be  deducted  from  the  amount 

Colorado.  Answer.  Allegation  that  miner  was  unacquainted  with 
and  unused  to  mining-  stricken  out:  See  Ontario-Colorado  G.  M.  Co.  v. 
Mackenzie,  19  Colo.  App.  29S,  74  Pac.  Rep.  791. 

Striking  out  allegation  o£  tender,  repeated  in  same  form  in  answer, 
not  error:  See  Ontario-Colorado  G.  M.  Co.  v.  Mackenzie,  19  Colo.  App. 
2bj,  74  Pac.  Rep.  791. 

luiiiroper  alle|i;ations  in  ansvi'er  stricken  out:  See  Ontario-Colorado 
G.  M.  Co.  V.  Mackenzie,  'l9  Colo.  App.  29S,  74  Pac.  Rep.  791. 

Oregon.  Where  a  subclaimant,  for  a  valuable  consideration  moving 
from  tlie  owner,  waives  liis  lien,  the  answer  may  set  up  such  waiver, 
instead  of  setting  up  matters  which  gave  rise  to  it,  by  way  of 
estoppel:  Hughes  v.  Lansing,  34  Oreg.  118,  55  Pac.  Rep.  95,  97,  75  Am. 
St.  Rep.  574. 

AAyoming.  Estoppel  as  to  full  amount  due  under  partial  statement 
furnislied:  See  Big  Horn  L.  Co.  v.  Davis,  14  Wyo.  455,  85  Pac.  Rep. 
104S,  84   Id.   900. 

"  West  Coast  L.  Co.  v.  Newkirk,  80  Cal.  275,  277,  22  Pac.  Rep.  231. 

=^-  Griffith  V.  Happersberger,  86  Cal.  605,  612,  25  Pac.  Rep.  137,  487. 

.Setting  up  action  to  foreclose  prior  mortgage:  Bewick  v.  Muir,  83 
Cal.  373,  23  Pac,  Kep.  390, 

2^  See  Kelley  v.  Plover,  103  Cal.  35,  37,  36  Pac,  Rep.  1020;  Griffith  v. 
Happersberger,  86  Cal.  605,  609,  25  Pac.  Rep.  137,  487. 

=•'■  McGuire  v.  Quintana,  52  Cal.  427,  428. 

Colorado.  Non-completion  within  contract  time:  Mclntyre  v. 
Barnes,  4  Colo.  285.  See  Charles  v.  Hallack  C.  &  Mfg.  Co.,  22  Colo. 
283,  43  Pac.  Rep.  548. 

I'tali.  Damages  in  action  by  subclaimants  to  foreclose  liens:  Cul- 
mer  v.  Clift,  14  Utah  286,  47  Pac.  Rep.  85. 

=»>  Blethen  v.  Blake,  44  Cal.  117,  120, 

"  Kelley  v.  Plover,  103  Cal.  35,  37,  36  Pac.  Rep.  1020.  See  Bragg  v. 
Shain,  49  Cal.  131,  132, 

See  §  619,  ante. 


§§  748, 749  mechanics'  liens.  662 

of  the  contract,"  the  answer  of  the  owner  to  a  subclaimant's 
complaint  of  foreclosure  should  show  that  the  contractor, 
having  neglected  to  supply  a  sufficiency  of  materials,  was 
notified  by  the  owner  to  proceed  with  the  work  in  three 
days,  or  that  he  (the  owner)  would  complete  the  house 
himself,  if  he  seeks  to  take  advantage  of  this  clause  of  the 
contract.-^ 

§  748.  Same.  Abandonment.  In  the  case  stated  in  the 
preceding  section,  where  the  owner  defends  by  showing  the 
amount  paid  by  him  to  the  original  contractor  before  the 
abandonment  by  such  contractor  of  his  work  and  contract, 
and  the  amount  paid  for  completing  the  building,  the 
answer  must  allege  that  the  sum  so  paid  by  the  owner  to 
the  contractor  was_due.:vvhen  the  same^wasj^id ;  that  the 
aggregate  of  liens  foreclosed  exceeds  the  amount  which 
was  to  be  paid  by  the  owner  under  the  contract;  and  that 
the  sums  paid  by  him  after  the  alleged  abandonment  were 
paid  to  complete  the  building  according  to  the  terms  of  the 
contract.^^ 

§  749.  Same.  Payments  made  by  owner.  Where  the 
answer  to  a  subclaimant's  complaint  shows  that  the  ori- 
ginal contract  was  a  non-statutory  original  contract,  and 
that  the  payments  were  all  made  in  accordance  with  the 
contract,  and  before  notice  of  plaintiff's  claim,  the  answer 
is  sufficient.^" 

2s  Quale  V.  Moon,  48  Cal.  478,  482. 

Pleading  conditions,  generally:  See  §  676,  ante. 

29  Quale  V.  Moon,  48  Cal.  478,  482. 

See  "Invalid  Contract,"  §§319  et  seq.,  ante;  "Abandonment,"  §§358 
et  seq.,  ante;  "Notice,"  §§547  et  seq.,  ante;  "Valid  Contract,"  §§315 
et  seq.,'  ante;  "Lien  as  Limited  by  Contract,"  §§  452  et  seq.,  and  §§  315, 
355,  559,  ante. 

New  Mexico.  Where  certain  land  was  to  be  given  as  part  payment, 
defendant  must  allege  tender  of  a  sufficient  deed  thereof:  Ford  v. 
Springer  Land  Assoc,  8  N.  M.  37,  41  Pac.  Rep.  541. 

Washington.  Defendant  must  specially  plead  payment:  Spokane 
Mfg.  &  L.  Co.  V.  McChesney,  1  W'ash.  609,  612. 

30  Kerckhoff-Cuzner  M.  &  L.  Co.  v.  Cummings,  86  Cal.  22,  26,  24  Pac. 

Rep.  814. 

See  "Liability,"  §§547  et  seq.,  ante;  "Invalid  Contract,"  §§319 
et  seq.,  ante;  "Valid  Contract,"  §§315  et  seq.;  ante. 


663  AXSWER,   AND   OTHER  PLEADINGS.  §§  750-752 

§  750.  Same.  Void  contract  as  defense.  Where  the 
statutory  origiual  contract  is  void,  it  has  been  held  that  it  is 
not  available  as  a  defense  for  any  purpose,  either  to  de- 
termine the  amount  of  the  contract  price  or  to  limit  the 
liability  of  the  owner,  or  as  the  foundation  of  a  right  to 
complete  the  building  according  to  its  terms,'' ^  or  for  dam- 
ages for  breach  of  the  contract ;  ^-  but  the  limitations  upon 
these  rules  have  been  already  pointed  out.'^^ 

Plans  and  specifications  referred  to  in  contract,  but  not 
filed.  Where  the  answer  sets  out  a  statutory  original  eon- 
tract  providing  that  the  work  should  be  done  "  conformable 
to  the  drawings  and  specifications  made  by  C.  E.  S.  and 
signed  by  the  parties,  within  the  time  aforesaid,"  the  aver- 
ment is  insufficient,  if  it  fails  to  show  that  the  plans  and 
specifications  were  filed.^* 

§  751.     Same.     Void   contract  no   defense   in  personam. 

An  allegation  showing  that  the  statutory  original  contract 
is  void  is  no  defense  to  an  action  in  personam  by  the  eon- 
tractor  on  the  implied  contract ;  ^^  likewise  an  allegation 
that  the  implied  contract  was  not  recorded,  or  that  the 
work  and  materials  were  done  and  furnished  in  pursuance 
of  a  statutory  original  contract  which  was  not  filed  for 
record.^® 

§  752.  Same.  Mechanic's  lien  as  defense  to  mortgage 
foreclosure.     Where  it  is  charged  in  tlie  complaint  for  tbe 

"  WiHamette  S.  M.  Co.  v.  Los  Angeles  CoUege  Co.,  94  Cal.  229,  240, 
29  Pac.  Rep.  629. 

See  cross-references  in  note  33,  infra. 

^^  Rebman  v.  San  Gabriel  Valley  L.  &  W.  Co.,  9.5  Cal.  390,  395,  30  Pac. 
Rep.  564.  See  White  v.  Fresno  Nat.  Bank,  98  Cal.  166,  168,  32  Pac.  Rep. 
979. 

See  cross-references  in  note   33,  infra. 

^•'  See  §§  319  et  seq.,  §  559,  and  §§  543  et  seq.,  ante. 

3^  Holland  v.  Wilson,  76  Cal.  434,  436,  18  Pac.  Rep.  412.  And  see 
White  V.  Fresno  Nat.  Bank,  98  Cal.  166,  168,  32  Pac.  Rep.  979  (which 
says  that  the  question  arose  on  special  demurrer). 

See  "Filing  Plans  and  Specifications,"  §§  294  et  seq.,  ante. 

=*=  Rebman  v.  San  Gabriel  V.  L.  &  W.  Co.,  95  Cal.  390,  395,  30  Pac. 
Rep.   564. 

But  see  §§  319  et  seq.,  §§  543  et  seq.,  and  §  559,  ante. 

^  Rebman  v.  San  Gabriel  V.  L.  &  W.  Co.,  95  Cal.  390,  395,  30  Pac 
Rep.  564.     But  see  note  preceding. 


§§753,754  mechanics'  LIENS.  664 

foreclosure  of  a  mortgage  that  the  defendants  have  or 
claim  some  interest  in  the  mortgaged  premises,  the  interest, 
if  it  be  a  mechanic's  lien  paramount  to  the  mortgage,  may 
be  set  out  by  way  of  answer.^' 

§  753.  Same.  Counterclaim.  Payments.  The  owner 
may  properly  set  out  as  a  counterclaim,  where  his  claimant 
seeks  to  enforce  a  lien,  that  the  defendant,  "  to  avoid  threat- 
ened litigation,"  paid  to  plaintiffs,  upon  a  certain  day  before 
the  date  of  an  alleged  contract  for  materials,  an  amount  of 
money  in  excess  of  what  was  then  due  plaintiffs  for  materials 
before  that  time  furnished.'* 

Payment  of  lien  claims.  In  an  action  by  the  original  con- 
tractor in  personam  on  the  implied  contract,  the  statutory 
original  contract  being  void,  the  owner  may  set  off  the 
amount  paid  by  him  upon  foreclosure  of  liens  of  material-men 
for  materials  furnished  the  contractor,  including  the  amount 
allowed  and  paid  for  attorneys'  fees  and  costs,  as  well  as 
for  principal  and  interest  on  the  liens. ^'^ 

§  754.  Same.  Judgment  and  costs  in  action  against 
agent.  Where  the  complaint  of  the  original  contractor  is  in 
indebitatus  assumpsit,  the  amount  of  a  judgment  and  costs 

"  Germania  B.  &  L.  Assoc,  v.  Wagner,  61  Cal.  349,  354. 

See  §§  715,  716,  ante,  and  §  760,  post. 

Oregon.  It  seems  that  a  defendant  may  set  up  a  lien  upon  the 
property  in  his  answer:  Title  G.  &  T.  Co.  v.  Wrenn,  35  Oreg.  62,  56 
Pac.  Rep.  271,  76  Am.  St.  Rep.  454. 

^  Clark  V.  Taylor,  91  Cal.  552,  554,  27  Pac.  Rep.  860  (probably  de- 
cided under  §  438,  subd.  1,  Code  Civ.  Proc).  See  the  case  explained 
in  Griswold  v.  Pieratt,  110  Cal.  259,  266,  42  Pac.  Rep.  820. 

Counterclaim:  See  §§  515  et  seq.,  ante. 

Payment  o£  liens  by  owner;  counterclaim:  See  Wilson  v.  Nugent, 
125  Cal.  280,  282,  57  Pac.  Rep.   1008. 

Montana.  Reply  to  counterclaim  denying  knowledge  or  informa- 
tion sufficient  to  form  belief:  See  McEwen  v.  Montana  P.  &  P.  Co. 
(Mont.,  June  3,  1907),  90  Pac.  Rep.  359,  360. 

"»  Covell  V.  ^Vashburn,  91  Cal.  560,  562,  27  Pac.  Rep.  859.  See  Mar- 
chant  V.  Hayes,  117  Cal.  669,  672,  49  Pac.  Rep.  840.  See  "Obligations  of 
Owner,"  §§523  et  seq,,  ante;   "Attorneys'  Fees,"  §721,  ante. 

Orei^on.  In  a  suit  by  a  subclaimant  to  foreclose  his  lien,  it  seems 
that  the  owner  may  set  up  against  the  contractor  the  excess  of  liens 
paid  by  him  over  the  contract  price:  Cooper  Mfg.  Co.  v.  Delahunt,  36 
Oreg.  402,  51  Pac.  Rep.  649. 


665  ANSWER,    AND  OTHER   PLEADINGS.  §§  755-757 

in  another  suit,  brought  by  a  subcontractor  against  the 
agent  of  the  defendant  for  certain  Avork  under  the  original 
contract,  cannot  be  deducted  from  the  balance  unpaid  on  the 
original  contract,  and  cannot  affect  the  amount  recoverable 
by  the  contractor,  when  the  latter  was  not  a  party  to  such 
suit.*" 

§  755.  Same.  Orders  paid.  Where  the  contractor  lias 
given  orders  to  the  owner  of  the  building  in  favor  of  ma- 
terial-men, who  afterwards  filed  liens  upon  the  property, 
and  the  owner,  at  the  date  of  the  orders,  was  indebted  to 
the  contractor  in  excess  of  that  amount,  and  agreed  to  pay 
the  orders,  the  liens  should  be  offset,  in  a  suit  by  the  con- 
tractor against  the  owner,  only  for  the  amount  due  at  the 
date  of  the  orders,  and  not  for  the  costs  and  expenses  of  the 
liens.^^  But  where  there  is  no  promise  to  pay  such  orders, 
the  rule  is  otherwise.*^ 

§  756.  Same.  Damages.  And  the  damages  sustained  by 
the  owner  may  be  set  off  in  the  answer  against  a  plaintiff 
who  is  a  bondsman  on  the  contractor's  bond,"  as  well  as 
against  the  contractor  himself.** 

§  757.  Same.  Future  repairs.  Where  the  answer  of  the 
employer,  in  an  action  by  the  contractor,  sets  up  a  counter- 

*>  Griffith  V.  Happersberger,  86  Cal.  605,  614,  25  Pac.  Rep.  137,  487. 

See  "Agency,"  §§  572  et  seq.,  ante. 

"  Coven  V.  Wasl)burn,  91  Cal.  560,  562,  27  Pac.  Rep.  H:>9. 

Setting:  off  lieu.s,  oo.<it.s,  and  expenses:  See  Adams  v.  Burbank  103 
Cal.  646,  650,  37  Pac.  Rep.  640. 

See  "  Obligations  of  Owner,"  §§  523  et  seq.,  ante. 

*•  Clancy  v.  Plover,  107  Cal.  272,  275,  40  Pac.  Rep.  394. 

"  Blyth  V.  Robinson,  104  Cal.  239,  242,  37  Pac.  Rep.  904;  Rlyth  v 
Torre  (Cal.,  Dec.  14,  1894),  38  Pac.  Rep.  639.  See  Stimson  M.  Co.  v 
Riley  (Cal.,  Dec.  20,  1895),  42  Pac.  Rep.  1072;  Bragg  v.  Sliain  49  Cal 
131,   132. 

See  "Sureties,"  §§  605  et  seq.,  ante;  "Cross-complaint,"  §§  761  et  seq 
post. 

"  Scammon  v.  Denio,  72  Cal.  393,  14  Pac.  Rep.  98  (amount  expended 
In  completing  house). 

OffsetN:  Damages  for  breach   of  contract  by  contractor:  See  Hamp- 
ton  v.  Christensen,   148  Cal.   729,   84  Pac.   Rep.   200.     See   §§  515   et'seq 
ante.  ' 


§  758  mechanics'  liens.  666 

claim  for  the  expense  of  keeping  the  work  in  repair  during 
the  period  of  one  year  after  completion,  in  accordance  with 
the  terms  of  the  contract,  it  is  not  proper  to  plead,  in  an 
answer  tiled  after  the  period  of  one  year  in  question  had 
elapsed,  that  the  owner  will  be  required  to  expend  more 
than  a  sum  specified  for  that  purpose.*^ 

Against  assignee.  Expenditures  by  the  owner  for  repairs, 
or  damage  arising  from  the  failure  of  the  contractor  to  keep 
the  structure  in  repair  for  one  year,  as  agreed  in  the  con- 
tract, which  accrued  at  least  as  early  as  notice  of  assignment 
of  the  amount  due  upon  the  contract,  it  has  been  held,  cannot 
be  set  up  as  a  counterclaim  against  the  assignee,  where  it 
appears  that  the  agreement  of  the  owner  to  pay  the  contract 
price  in  thirty-five  days  after  the  completion  of  the  contract 
is  in  no  manner  dependent  upon  the  contractor's  engagement 
to  keep  the  work  in  repair  for  one  year  after  such  com- 
pletion; and  in  such  case  no  right  of  recoupment  or  set-off 
for  the  expense  of  future  repairs  exists  in  favor  of  defend- 
ant.**^ 

Where  there  is  a  mere  novation  of  a  second  contractor, 
who  undertakes  the  complete  performance  of  the  contract  for 
the  first  original  contractor,  an  assignment  to  the  former 
of  moneys  due  to  the  latter  would  not  affect  the  right  of 
set-off  as  against  the  latter."^ 

§  758.  Same.  Damages  for  delay.  Section  eleven  hun- 
dred and  eighty-four  *^  refers  to  offsets  not  arising  under 
the  terms  of  the  contract,  as  to  which,  from  an  inspection 
thereof,  subclaimants  can  have  no  notice,  and  in  a  suit  by 
subclaimants  the  owner  is  entitled  to  set  off  damages  because 
of  the  delay  in  the  completion  of  the  building,  as  required 

«  First  Nat.  Bank  v.  Ferris  Irr.  Dist.,  107  Cal.  55,  66,  67,  40  Pac.  Rep. 
45.     See  note  47,  infra. 

*•  First  Nat.  Bank  v.  Perris  Irr.  Dist.,  107  Cal.  55,  66,  67,  40  Pac.  Rep. 
45.     See  note  47,  infra. 

«  First  Nat.  Bank  v.  Perris  Irr.  Dist.,  107  Cal.  55,  66,  67,  40  Pac.  Rep. 

■5. 

See,  however,  right  of  set-off  as  against  assignee,  §§  516,  516,  and 
§§  588  et  seq.,   an<^e,  and  "  Novation,"   §  333,  ante. 

*«  Kerr's  Cyc.  Code  Civ.  Proe.,  §  1184. 


667  ANSWER,    AND  OTHER  PLEADINGS.  §§759,760 

by  the  contract;  but  not  as  against  the  final  iDayment  under 
a  statutory  original  contract.*'* 

§  759.  Cross-complaint.^°  The  facts  set  forth  in  a  plead- 
ing determine  whether  it  is  an  answer  or  a  cross-complaint; 
and  it  is  immaterial  what  the  defendant  calls  his  pleading; 
and,  whether  he  designates  it  as  an  answer  or  a  cross-com- 
plaint, its  character  will  be  determined  by  the  court.  So 
where  a  mechanic's  lien  was  foreclosed,  and  the  answer  of 
the  contractor  pleaded  his  own  lien  against  the  property, 
the  court  held  that  it  was  a  cross-complaint.^^ 

§  760.  Same.  Setting  up  mechanic's  lien  in  mortgage 
foreclosure.  Upon  the  foreclosure  of  a  mortgage,  where 
the  plaintiff  charges  that  the  defendant  has  or  claims  some 
interest  in  the  premises,  it  is  not  necessary  to  set  up  a  me- 
chanic's lien  upon  the  premises  paramount  to  the  mortgage, 
by  way  of  cross-complaint,  but  it  may  be  done  by  answer ;  ^^ 
and  in  such  case  no  cross-complaint  need  be  served  and 
filed.^^ 

"  Builders'  Supply  Depot  v.  O'Connor  (Cal.,  Jan.  10,  1907),  88  Pac. 
Rep.  982,  following  Hampton  v.  Christensen,  148  Cal.  729,  84  Pac.  Rep. 
200. 

See  §§  515  et  seq.,  ante. 

Montana.  Set-off  and  counterclaim  by  owner  against  contractor: 
See  Boucher  v.  Powers,   29  Mont.  342,   74   Pac.  Rep.   942. 

="  Motion  to  strike  out  cross-complaint  witlidrawn;  on  appeal,  ob- 
jections not  considered:  See  Hughes  Bros.  v.  Hoover,  3  Cal.  App.  145, 
84  Pac.  Rep.  681. 

°i  Holmes  v.  Richet,  56  Cal.  307,  311,  38  Am.  St.  Rep.  54. 

"  Germania  B.  &  L.  Assoc,  v.  Wagner,  61  Cal.  349,  354.  See  Miller 
V,  Luco,  80  Cal.  257,  261,  22  Pac.  Rep.  195;  Bulwer  Con.  M.  Co.  v. 
Standard  Con.  M.  Co.,  83  Cal.  589,  599,  23  Pac.  Rep.  1102;  Mills  v, 
Fletcher,  100  Cal.  142,   149,  34  Pac.  Rep.  637. 

See  "Complaint,"   §§715,   716,  ante;  "Answer,"  §752,  ante. 

Cross-complaint  filed  by  lien  claimant:  Whittier  v.  Fuller,  48  Cal. 
175. 

Demurrer  for  misjoinder  of  causes  of  action  in  a  cro.ss-complaint: 
Quale  V.  Moon,  48  Cal.   478. 

Certain  breaclies  of  contract  set  forth  in  cross-complaint,  and  dam- 
ages prayed!  Griffith  v.  Happersberger,  86  Cal.  605,  609,  25  Pac.  Rep. 
137,   487. 

See  §  752,  ante. 

S3  Germania  B.  &  L.  Assoc,  v.  Wagner,  61  Cal.  349,  351. 

A  claimant  made  a  party  may  set  up  his  lien  by  way  of  cross- 
coinplaint: 

Colorado.     Ford  G.  Min.  Co.  v.  Langford,   1  Colo.   62    (1864). 

Oregon.  By  way  of  answer:  Title  G.  &  T.  Co.  v.  Wrenn,  3?  Ores. 
62,  56  Pac.  Rep.  271,  76  Am.  St.  Rep.  454. 


§§  7G1-7G3  mechanics'  liens.  668 

§  761.  Same.  Damages.  Where  the  statutory  original 
contract  is  void,  there  can  be  no  cross-complaint  for  damages 
for  its  breach ;  ^*  but  damages  may  be  affirmatively  re- 
covered b}-  the  OAvner  on  a  cross-complaint  against  a  plaintiff 
Avho  is  a  bondsman  on  the  contractor's  bond.^^ 

§  762.  Same.  Payments.  Where  an  action  is  brought 
in  equity  to  foreclose  a  material-man's  lien  for  materials 
contracted  for  on  a  certain  date,  and  the  cross-complaint  of 
the  owner  alleges  that,  "  to  avoid  threatened  litigation,"  he 
paid  to  plaintiffs,  at  an  earlier  date,  a  sum  of  money  in 
excess  of  what  was  then  due  them  for  materials  before  that 
time  furnished,  and  prays  judgment  for  such  sum,  the  cause 
of  action  set  up  in  the  cross-complaint  does  not  relate  to  nor 
depend  upon  the  contract  or  transactions  upon  which  the 
plaintiffs'  action  was  brought,  nor  does  it  affect  the  property 
to  which  the  plaintiffs'  action  relates.  Such  cross-complaint 
is  not  authorized  by  section  four  hundred  and  forty-two, ^^ 
and  is  properly  demurrable.  The  same  matters,  if  set  up 
in  a  counterclaim,  are  properly  cognizable  under  that  plead- 
ing." 

§  763.  Supplemental  answer.  Decree  of  foreclosure  of 
mortgage.  The  decree  of  foreck)sure  of  a  mortgage  in  favor 
of  a  defendant  in  a  meehanic's-lien  foreclosure  suit  may  be 
set  up  upon  a  retrial  of  the  latter  action  by  way  of  supple- 
mental answer,  if  made  during  the  pendency  of  the  same, 
and  the  question  as  to  its  effect  tried  and  determined. ^^ 

=^  Rebman  v.  San  Gabriel  V.  L.  &  W.  Co.,  95  Cal.  390,  396,  30  Pac, 
Rep.   564. 

See  §§  515  et  seq.,  and  §§  319  et  seq.,  ante. 

"•'  Blyth  V.  Torre   (Cal.,  Dec.   14,   1894),  38  Pac.  Rep.   639. 

See  "Sureties,"  §§  605  et  seq.,  ante. 

no  Kerr's  Cyc.  Code  Civ.  Proc,  §  4  42. 

•■'  Clark  V.  Taylor,  91  Cal.  552,  554,  27  Pac.  Rep.  S60. 

=»  Bewick   v.  Muir,   83  Cal.   373,   23   Pac.   Rep.   390. 

OklahoiHu.  A  supplemental  petition  should  be  filed  for  amounts 
becoming-  due  after  suit  brought:  El  Reno  E.  L.  &  T.  Co.  v.  Jennison, 
5  Okl.   759,  50  Pac.  Rep.   144. 

Washington.  Supplemental  pleadings  must  be  filed  by  assignee 
pendente  lite,  who  is  substituted  as  a  party 'plaintiff,  after  service  on 
the  defendant,  who  defaults  before  judgment  can  be  rendered  in  favor 
of  substituted  plaintiff;  Powell  v.  Nolan,  27  Wash.  318,  68  Pac.  Rep. 
389,  67  Id.  712. 


669  EviDExcB.  §  764 


CHAPTER    XXXVIII. 

EVIDENCE. 

§  764.  Scope  of  chapter. 

§  765.  General  rule  as  to  exclusion  of  evidence. 

§  766.  Admissions. 

§  767.  Attorneys'  fees. 

§  768.  Description  of  property. 

§  769.  Extent  of  land  for  convenient  use  and  occupation. 

§  770.  Books  of  account. 

§  771.  Claimant  as  witness  against  estate. 

§  772.  Fixtures.     Intention  of  parties.' 

§  773.  Judicial  notice. 

§  774.  Parol  evidence.     Assignment. 

§  775.  Same.     Parol  evidence  to  explain  meaning  of  words. 

§  776.  Notice.     Probate  proceedings. 

§  777.  Questions  assuming  matter  in  dispute. 

§  778.  Receipt. 

§  779.  Agency. 

§  780.  Same.     Special  statutory  provision.     Presumption. 

§  781.  Same.     Overcoming  presumption.     Knowledge. 

§  782.  Same.     Knowledge  of  lack  of  agency. 

§  783.  Same.     Knowledge  that  employer  incurred    indebtedness  on 

his  own  account. 

§  784.  Same.     Proof  of  knowledge  of  owner. 

§  785.  Burden  of  proof.     Generally. 

§  786.  Same.     Priorities. 

§  787.  Same.     Time  of  filing  claim  of  lien. 

§  788.  Same.     Cessation  from  work. 

§  789.  Certificate  as  evidence. 

§  790.  Same.     Conclusiveness  of  certificate. 

§  791.  Same.     Certificate    as    evidence    of    time    of    completion    of 

building. 

§  792.  Completion  of  building. 

§  793.  Same.     Statutory  evidence. 

§  794.  Non-completion  of  building. 

§  795.  Claim  of  lien.     As  evidence  of  lien. 

§  796.  Same.     Objections  to  contents  of  claim. 

§  797.  Extra  work. 

§  798.  Valid  contract. 

§  799.  Same.     Parol  modifications  of  written  contract. 

§  800.  Same.     Contract  admissible  to  show  character    of    building. 


§  764  mechanics'  liens.  670 

§  801.  Same.  Contract  as  evidence  with  reference  to  time  of  per- 
formance of  labor. 

§  802.  Inadmissibility  of  indefinite  contract. 

§  803.  Parol  evidence  in  aid  of  false  reference. 

§  804.  Parol  evidence  not  admissible  for  construction  of  contract. 

§  805.  Same.     Rule  not  applicable  to  mere  memorandum. 

§  806.  Same.     Performance  of  contract. 

§  807.  Void  original  contract  admissible  for  what  purpose. 

§  808.  Same.     Invalidity,  how  shown. 

§  809.  Mai  performance  of  work. 

§  810.  Liquidated  damages. 

§  811.  Damages.  Circumstances  surrounding  execution  of  con- 
tract.    Defendant  in  default. 

§  812.  Presumption  of  knowledge  by  subclaimants  of  valid  con- 
tract. 

§  813.  Evidence  of  benefit  conferred. 

§  814.  Acceptance  of  performance. 

§  815.  Evidence  of  liability  in  case  of  failure  to  perform,  or  aban- 
donment. 

§  816.  Estoppel  as  evidence.     General  rule, 

§  817.  Same.     Judgment. 

§  818.  Same.     Owner  estopped. 

§  819.  Same.     Owner  estopped  by  acts  of  reputed  owner. 

§  820.  Same.     Surety  not  estopped  to  foreclose  lien. 

§  821.  Same.     Estoppel  of  contractors  on  bond. 

§  822.  Forfeiture  and  fraud. 

§  823.  Same.     Rescission  as  evidence  of  fraud. 

§  824.  Same.     Fraudulent  representations. 

§  825.  Use  of  materials  in  building. 

§  826.  Money  advanced. 

§  827.  Questions  of  fact. 

§  828.  Questions  of  law. 

§  829.  Value.  Valid  contract  as  evidence  thereof.  Action  on  im- 
plied contract. 

§  830.  Same.     Common  counts. 

§  831.  Same.  Contract  as  evidence  of  extra  work.  Express  con- 
tract. 

§  832.  Same.     Void  contract. 

§  833.  Same.     Market  price.     Usual  price. 

§  834.  Same.     Other  evidence  of  value. 

§  764.     Scope  of  chapter.^     No  special  reference  is  made 
in  the  chapter  on  mechanics'  liens  ^  to  part  four  of  the  Code 

^  See  general  plan  of  treatment,   §  670,   ante. 

Release    of   owner   aanii.ssible    against    assignee:    See    §§634    et    seq., 
ante. 

2  Kerr's   Cyc.   Code   Civ.  Proo.,   §§  1183-1203a, 


d 


671  EVIDENCE.  §  765 

of  Civil  Procedure  relating  to  evidence,'  nor  is  there  any 
mention  of  the  former  in  the  latter.  It  is  assumed  that  the 
provisions  of  the  title  on  evidence  are  applicable,  except 
so  far  as  modified  by  the  chapter  on  mechanics'  liens.  It 
is  intended  here  to  consider  only  the  rules  peculiar  to 
mechanics'  liens,  prefacing  the  same  with  a  few  general 
principles  found  in  the  cases  under  discussion. 

§  765.  General  rule  as  to  exclusion  of  evidence.  If  facts 
essential  to  support  the  cause  of  action  be  not  alleged,  evi- 
dence upon  such  omitted  facts  cannot  be  heard  or  con- 
sidered ;  *  but  where  a  question  is  put  and  answered  as  to 
an  issue  admitted  by  the  answer,  omitting  to  deny  the  aver- 
ment of  the  complaint,  for  instance,  as  to  the  ownership  of 
the  fee,  and  the  defendant  is  not  injured  thereby,  the  error, 

■'•  Kerr's  Cyc.  Code  Civ.  Proc,  §§  1823-2104.  And  consult  volumi- 
nous notes  to  these  sections  for  authorities  on  the  general  subject  of 
evidence. 

Immaterial  evidence  as  to  partnership:  See  Bradbury  v.  McHenry, 
125  Cal.  xix,  57  Pac.  Repj  999. 

Evidence  o£  partial  tender  of  performance  on  one  day  and  tender 
of  other  part  on  another  day:  See  Schroeder  v.  Pissis,  128  Cal.  209,  21o, 
60  Pac.  Rep.   758. 

Evidence  of  non-liability  of  tenant  not  admissible  to  show  liability 
of  owner:  Bradbury  v.  McHenry,  125  Cal.  xix,   57  Pac.  Rep.  999. 

Colorado.  The  right  of  a  material-man  to  hold  a  lien  must  be 
maintained  by  proof  bringing'  it  directly  within  the  statute:  Groth  v. 
Stahl,  3  Colo.  App.  8,  30  Pac.  Rep.  1051. 

Oregon.  Evidence  of  assignment  of  contract  prohibited  by  U.  S. 
Rev.  Stats.,  §3737  (U.  S.  Comp.  Stats.  1901,  p.  2507,  6  Fed.  Stats.  Ann. 
123);  and  evidence  as  to  payment:  See  North  Pac.  L.  Co.  v.  Spore,  44 
Oreg.  462,  75  Pac.  Rep.  890, 

Utali.  Discovery  allowed  in  an  action  for  accounting  and  to  fore- 
close lien:  See  Utah  C.  Co.  v.  Montana  P.  &  P.  Co.,  147  Fed.  Rep.   981. 

Wasfaiington.  Intention  to  assert  a  lien  absent;  held,  evidence  must 
be  clear  as  to  facts  establishing  lien:  Knudson-Jacob  Co.  v.  Brandt 
(Wash.,  Sept.  25,  1906),  87  Pac.  Rep.  43   (doubtful  law). 

City  charter  admissible  in  evidence:  See  City  of  Seattle  v.  Turner, 
29  Wash.  515,  69  Pac.  Rep.  1083. 

*  Hicks  v.  Murray,  43  Cal.  515,  522;  Ellis  v.  Rademacher,  125  Cal. 
556,  558,  58  Pac.  Rep.  178. 

Facts  not  allegred  in  pleadings  disregarded  on  appeal:  See  Burnett 
v.  Stearns,  33  Cal.  468;  Gregory  v.  Nelson,  41  Cal.  278;  Bradbury  v. 
Cronise,  46  Cal.  287;  Estate  of  McKinley,  49  Cal.  152;  McDonald  v. 
Mission  View  H.  Assoc,  51  Cal.  210;  Hill  v.  Den,  54  Cal.  6,  20;  Tracy  v. 
Craig,  55  Cal.  91;  Silvey  v.  Neary,  59  Cal.  97;  Campe  v.  Lassen,  67  Cal. 
139,  7  Pac.  Rep.  430;  Ortega  v.  Cordero,  88  Cal.  221,  226,  26  Pac.  Rep.  80. 

Neither  stipulation  nor  admis.sion  can  remedy  the  defect:  Tucker 
V.  Parks,  7  Colo.  62,  68,  1  Pac.  Rep.  427. 


§  766  mechanics'  liexs.  672 

being  harmless,  is  not  ground  for  reversal.'  At  the  trial 
the  defendant  cannot  controvert  a  fact  not  in  issue,  which 
is  deemed  to  be  admitted  by  the  pleadings.**  So  by  a  failure 
to  deny  that  labor  was  done  on  a  mining  claim,  as  averred 
in  the  complaint,  such  allegation  is  deemed  admitted,  and  the 
fact  cannot  be  controverted  on  the  trial.'^ 

§  766.  Admissions.  The  default  of  the  contractor  in  an 
action  of  a  subclaimant  to  enforce  a  lien  is  an  admission 
that  the  money  is  due  from  the  contractor  to  the  sub- 
claimant.® 

Misrepresentations  of  the  owner  as  to  the  actual  comple- 
tion of  the  building  is  admissible  in  evidence,  where  such 
owner  fails  to  file  a  notice  of  completion,  as  required  by  the 
statute,  either  on  the  theory  of  an  admission  or  estoppel.^ 

An  admission  in  the  pleadings  is  sufficient  to  support  a 
finding.^" 

=>  West  Coast  L,.  Co.  v.  Newkirk,   80  Cal.  275,  280,   22  Pac.  Rep.   231. 

«  Bradbury  v.  Cronise,  46  Cal.  287,  288;  Schmid  v.  Busch,  97  Cal.  184, 
187,  31  Pac.  Rep.  893:  Brunner  v.  Marks.  98  Cal.  374,  376.  33  Pac.  Rep. 
265.  See  Eaton  v.  Rocca,  75  Cal.  93,  97,  16  Pac.  Rep.  529;  Goss  v.  Hel- 
bing,   77  Cal.  190,   191,   19  Pac.  Rep.   277. 

'  Bradbury  v.  Cronise,  46  Cal.  287,  288. 

s  De  Camp  L.  Co.  v.  Tolhurst,  99  Cal.  631,  635,  34  Pac.  Rep.  438. 

Idaho.     See  Lowe  v.  Turner,   1  Idaho  112. 

Utah.  Evidence  of  conversations  with  president  and  manager  of 
corporation  as  to  wages:  See  Sandberg  v.  Victor  G.  &  S.  Min.  Co.,  24 
Utah   1,   66  Pac.  Rep.  360,   363. 

Evidence  as  to  adjustment  of  wages:  See  Sandberg  v.  Victor  G.  & 
S.  M.  Co.,  24  Utah   1,  66  Pac.  Rep.   360,   365. 

»  Hubbard  v.  Lee   (Cal.  App.,  Oct.  11,  1907),  92  Pac.  Rep.  744. 

See   §    546,   ante. 

Admission  as  to  correctness  of  survey:  See  Scanlan  v.  San  Francisco 
&  S.  J.  V.  R.  Co.  (Cal.,  Dec.  23,  1898),  55  Pac.  Rep.  694. 

"  West  Coast  L.  Co.  v.  Apfield,  86  Cal.  335,  342,  24  Pac.  Rep.  993. 

See  "  Complaint,"  §§  620  et  secj.,  ante. 

Failure  to  object  to  evidence  supporting  findings  in  conflict  with 
answer:    See  Schroeder  v.  Pissis,  12s  Cal.  209,  212,  60  Pac.  Rep.   758. 

Elvidenee  lield  insufficient:  California  I.  C.  Co.  v.  Bradbury,  138  Cal. 
328,   71  Pac.  Rep.   346.   617   (changes  and  extra  work,   excessive). 

Evidence  held  sufficient  to  support  verdict  or  finding:  Hale  Bros. 
V.  Milliken  (Cal.  App.,  May  3,  1907),  90  Pac.  Rep.  365  (damages  for 
delay  in  delivery). 

Colorado.  Everett  v.  Hart,  20  Colo.  App.  93,  77  Pac.  Rep.  254 
(declarations  against   Interest  by   lease-holder  of  mine). 

Oklahoma.  See  Harness  v.  McKee-Brown  L.  Co.  (Okl.,  Feb.  13, 
1907),  89  Pac.  Rep.  1020  (construction  and'use  of  lumber). 

Oregon.  Cline  v.  Shell,  43  Oreg.  372,  73  Pac.  Rep.  12  (reasonable 
value  of  goods;  all  goods  charged). 


673  EviDExxE.  |§  767-769 

§  767.  Attorneys'  fees.  No  evidence  need  be  produced 
or  appear  in  the  record  as  to  the  value  of  attorneys'  fees, 
when  properly  allowed  by  the  statute ;  nor  is  the  court  bound 
by  testimony  toiicliing  its  value,  though  such  evidence  is 
admissible,  and  may  properly  be  considered  by  the  court, 
the  only  regulation  being  that  it  shall  not  abuse  the  dis- 
cretion committed  to  it  by  the  statute. ^^ 

§  768.  Description  of  property.  Evidence  may  be  re- 
ceived for  the  purpose  of  determining  the  sufficiency  of  the 
description  of  the  property ;  and  such  evidence  will  include 
the  purpose  for  Avhich  the  description  is  required  and  the 
persons  who  are  to  be  affected  by  it.^- 

Field-notes  made  by  a  surveyor,  he  not  being  present  at 
the  trial  to  testify  to  their  correctness,  and,  no  competent 
evidence  of  their  correctness  being  given,  may  be  excluded. ^^ 

§  769.  Extent  of  land  for  convenient  use  and  occupation. 
Under  certain  circumstances,  elsewhere  more  fully  con- 
sidered, evidence  as  to  the  extent  of  land  necessary  for  the 
convenient  use  and  occupation  of  the  premises,  upon  proper 
allegations  in  the  pleadings,  should  be  given." 

^Vashin];^on.  Cochran  v.  Yoho,  34  Wash.  238,  75  Pac.  Rep.  815 
(forcibly  ejecting-  contractor  from  work);  Huetter  v.  Redhead,  3]  Wash. 
320.  71  Pac.  Rep.  1016  (amount  due).  See  Beebe  v.  Redward.  3.5  Wash.' 
615,  77  Pac.  Rep.  1052  (extras);  Lang  v.  Crescent  C.  Co.  (Wash.,  Nov. 
1.  1907),  87  Pac.  Rep.  261  (satisfaction  of  superintendent):  Knu'dson- 
Jacob  Co.  V.  Brandt  (Wash.,  Sept.  25,  1906),  87  Pac.  Rep.  43  (amount 
charg-eable  to  structure;  actual  delivery  of  material);  Lee  v.  Kimball 
(Wash.,  March  12,  1907),  88  Pac.  Rep.  1121  (upon  appeal;  land 
neces.sary  for  well);  Seattle  L.  Co.  v.  Sweeney  (Wash.,  June  19.  1906), 
85  Pac.  Rep.  677  (use  of  materials  in  building). 

"  Clancy  v.  Plover,  107  Cal.  272,  275,  40  Pac.  Rep.  394. 

New  Mexico.  Value  of  attorneys'  fees  found  without  evidence: 
See  Pearce  v.  Albright,  12  N.  M.  202,  76  Pac.  Rep.  286. 

'-  Union  L.  Co.  v.  Simon  (Cal.  App.,  March  13,  1906).  89  Pac  Rep 
1077,   1079. 

See  §§  399  et  seq.,  ante;  but  see  S  7G8,  post. 

Oregon.  Evidence  as  to  property  involved,  there  being  no  issue  in 
the  pleadings;  certified  copies  of  mining  journals:  See  Lewis  v. 
Eeeman,   46   Oreg.   311,  80  Pac.   Rep.   417. 

"  Scanlan  v.  San  Francisco  &  S.  J.  V.  R.  Co.,  128  Cal.  586,  588  61  Pac 
Rep.  271. 

"  Green  v.  Chandler.  54  Cal.  626,  627:  Willamette  S.  M.  Co.  v. 
Kremer.  94  Cal.  205,  211.  29  Pac.  Rep.  633. 

See  "Extent  of  Lien."  §§  438  et  seq.,  ante;  "Pleading,"  §§  710,  717 
et  seq..  ante. 

Mech.  Liens  —  4  3 


mechanics'  liens.  674 

§  770.  Books  of  account.  Testimony  introduced  by  the 
plaintiff  to  show  the  mode  in  which  the  plaintiff's  books  of 
account  were  kept,  and  that  they  were  correct,  is  properly 
admitted  in  evidence,  in  an  action  to  foreclose  the  lien  of  a 
material-man.^^ 

§  771.  Claimant  as  witness  against  estate.  The  claimant 
of  a  mechanic's  lien  against  a  building  erected  by  a  deceased 
person  is  a  competent  witness  to  testify  to  facts  occurring 
before  the  death  of  the  owner,  in  an  action  to  foreclose  the 
lien,  against  the  representative  of  his  estate. ^"^ 

§  772.  Fixtures.  Intention  of  parties.  Evidence  of  a 
tenant's  intention  in  reference  to  the  future  removal  of  a 
building  erected  by  him  upon  leased  premises  is  inadmissible 
in  an  action  to  foreclose  the  lien  of  a  material-man  upon  the 
land  and  building.  Although,  as  between  the  landlord  and 
his  lessee,  the  question  of  whether  a  building  about  to  be 
erected  would  become  a  part  of  the  realty  or  not  would 
depend  largely  upon  the  intention  of  the  parties,  yet  it 
would  not  depend  upon  the  intention  of  one  of  the  parties; 
nor  would  a  secret  intention  on  the  part  of  both  defeat  the 
rights  of  third  parties,  who  acted  without  notice  of  such 
intention,  and  upon  the  faith  of  the  rule  established  by  law, 
where  no  such  intention  existed.^^ 

§  773.  Judicial  notice.  The  courts  will  take  judicial 
notice  of  certain  things,  among  which  are  the  true  signifi- 
es West  Coast  L.  Co.  v.  Newkirk,  80  Cal.   275,   280,   22  Pac.  Rep.   231. 

Kawaii.  Entries  in  books  of  charges  against  contractor  alone 
some  evidence  that  tliey  were  furnished  on  his  credit,  but  is  not 
prima  facie  evidence  that  his  credit  was  relied  upon  to  the  exclusion 
of  the  security  of  the  building:  Hackfeld  v.  Hilo  R.  Co.,  14  Hawn.  448, 
453. 

"  As  the  lien  is  not  a  "claim"  against  the  estate,  within  the 
meaning  of  §  1880,  subd.  3,  of  the  Code  of  Civil  Procedure:  Booth  v. 
Pendola,  88  Cal.  36,  43.  23  Pac.  Rep.  200,  24  Id.  714,  25  Id.  1101. 

"  West  Coast  L.  Co.  v.  Newkirk,  80  Cal.  275,  22  Pac.  Rep.  231. 

See  §§   185  et  seq.,  ante. 

Evidence  as  to  permanency  of  fixture,  and  intent  of  o^vner  in 
relation  to  its  use,  admissible:  See  Stevenson  v.  Woodward,  3  Cal. 
App.   754,  86  Pac.  Rep.  990. 

Oklalioma.  Presumption  that  building  is  fixture  to  land:  See 
Bridges  v.  Thomas,  8  Okl.  620,  58  Pac.  Rep.  955. 


675  EVIDENCE.  §  774 

cance  of  all  English  words  and  phrases,  and  of  all  legal 
expressions.'^     Thus  — 

Mining  instrumentalities.  "  Shafts,"  "  tunnels,"  "  levels," 
"  chutes,"  "  stopes,"  "  uprises,"  "  crosscuts,"  "  inclines,"  and 
the  like,  when  applied  to  mines,  are  words,  of  the  meaning  of 
which  courts  will  take  judicial  notice.^" 

Computations.  Courts  will  take  judicial  notice  of  the  laws 
of  nature,  and  hence  of  the  rules  of  mensuration,  by  which 
the  cubic  contents  of  an  irregular  body  can  be  computed.-" 

Incorporation  of  city.  The  court  will  take  judicial  notice 
of  the  incorporation  of  a  city,  and  hence  will  take  such 
notice  that  San  Diego  is  an  incorporated  city,  for  the  pur- 
pose of  enforcing  a  lien  for  street- work,  etc.,  under  the 
provisions  of  section  eleven  hundred  and  ninety-one,-^  with- 
out an  allegation  in  the  complaint  to  that  effect. ^^ 

§  774.  Parol  evidence.  Assignment.  Parol  evidence  may 
be  admitted  to  show  the  object  and  purpose  of  an  assign- 
ment. By  explaining  all  the  facts  and  circumstances .  sur- 
rounding the  transaction,  the  instrument  is  not  varied  by 
parol  evidence.^^ 

"  Hines  v.  Miller,   122  Cal.   517,   55  Pac.  Rep.   401. 

"  Hines  v.  Miller,  122  Cal.   517,   55   Pac.   Rep.   401. 

20  Scanlan  v.  San  Francisco  &  S.  J.  V.  R.  Co.  (Cal.,  Dec.  23,  1898), 
65  Pac.  Rep.  694. 

See  Kerr's  Cyc.  Code  Civ.  Proe.,  §  1875,  subd.  8,  and  note. 

Evidence  of  Mlirinka^e  of  eniliankment :  See  Scanlan  v.  San  Fran- 
cisco &  S.  J.  V.  R.  Co.,  128  Cal.  586,  61  Pac.  Rep.  271. 

Coniitutations  accepted  a.s  suillciently  accurate:  See  Scanlan  v.  San 
Francisco  &  S.  J.  V.  R.  Co.,  128  Cal.  586,  61  Pac.  Rep.  271. 

^  Kerr's  Cyc.  Code  Civ.  Proc,  §  1191. 

22  Bryan   v.  Abbott,    131   Cal.   222,   63  Pac.   Rep.   363. 

See  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1875,  and  note. 

^  Renton   v.  Monnier,   77  Cal.   449,   19   Pac.   Rep.   820. 

As  to  parol  evidence,  see  note  15   Am.   St.   Rep.   714. 

Parol  evidence  admissible  to  show  tbat  supposed  priucipul  on  bond 
Is  surety:  See  National  B.  of  C.  v.  Schirm,  3  Cal.  App.  696,  86  Pac. 
Rep.   981. 

Montana.  Oral  evidence  that  payments  should  be  made  according 
to  custom,  not  admissible  to  vary  terms  of  express  written  contract: 
Ridden  v.  Peck-Williamson  H.  &  V.  Co.,  27  Mont.  44,  69  Pac.  Rep.  241. 

Washington.  As  to  check,  see  Megrath  v.  Gilmore,  10  Wash.  339, 
39  Pac.  Rep.  131.  Where  a  defendant  liolds  under  written  lease  the 
premises  upon  whicli  a  lien  is  claimed,  his  interest  therein  cannot  be 
shown  by  parol  testimony:  Cowie  v.  Alirenstedt,  1  W'ash.  416,  25  Pac. 
Rep.  458. 


§§  n 0-777  mechanics'  liens.  676 

§  775.  Same.  Parol  evidence  to  explain  meaning  of 
words.  Parol  evideuee  of  surrouiuiing  eireumstauces  may 
be  given  to  aid  in  the  proper  interpretation  of  an  instrument ; 
but  where  the  parties  have  themselves  used  words  which 
require  no  interpretation,  where  the  words  are  sufficiently 
clear  and  understood,  there  is  no  occasion  for  aid  to  their 
proper  interpretation  or  meaning,  and  parol  evidence  is  not 
admissible  therefor.-* 

Gross  ton.  Thus  where  a  contract  contains  the  expression 
"  gross  ton,"  parol  evidence  maj'  be  admitted  to  explain  it, 
and  to  prove  that  it  is  often  used  in  lieu  of  the  phrase  "  long 
ton,"  which  indicates  a  ton  of  two  thousand  two  hundred 
and  forty  pounds,  and  that  the  statutory  ton,  consisting  of 
two  thousand  pounds,  was  not  intended.^^ 

§  776.  Notice.  Probate  proceedings.  Probate  proceed- 
ings in  another  county  than  the  one  in  which  a  mine  is 
situated  affords  no  notice  to  lien  claimants  as  to  the  status 
of  the  title  of  the  property;  but  a  contract  to  work  a  mine 
belonging  to  the  estate,  signed  by  the  executor  as  such, 
if  known  to  the  laborers  under  the  contractor,  is  held  to  be 
notice  of  all  that  it  contains.-® 

§  777.  Questions  assuming  matter  in  dispute.  Questions 
assuming  the  matter  in  dispute  are  objectionable.     Thus  an 

2-»  Shaver  v.  Murdock,  36  Cal.  293,  297;  but  see  Bryson  v.  McCone, 
121  Cal.  153,  53  Pac.  Rep.  637. 

Colorado.  Parol  evidence  not  admissible  to  explain  contract,  when 
terms  are  clear:  See  Flick  v.  Hahn's  Peak  &  E.  R.  Co.,  16  Colo.  App. 
4S5,  66  Pac.  Rep.  453.  455. 

="  Higgins  v.  California  P.  &  A.  Co.,  120  Cal.  629,  52  Pac.  Rep.  1080; 
but  see  s.  c.  109  Cal.  304,  41  Pac.  Rep.  1087  (under  Kerr's  Cyo.  Code 
Civ.  Prop.,  S  1861). 

Evidence  of  custom  as  to  weijrh*  o'  structural  steel;  "gross  ton"; 
"long  ton":  Hale  Bros.  v.  Milliken  (Cal.  App.,  May  31,  1907),  90  Pac. 
Rep.  365,  369. 

Colorado.  Parol  evidence  admissible  to  explain  doubtful  meaning 
of  "  heart  of  yellow  pine,"  in  contract,  circumstances  surrounding 
execution  of  same,  and  conversations  leading  up  to  same:  San  Miguel 
Consol.  G.  M.  Co.  v.  Stubbs   (Colo.,  April  1,  1907),  90  Pac.  Rep.   842,  844. 

Oregon.  Evidence  of  usage  to  explain  expression  "  straiglit  cut 
and  fill":  See  Aldrich  v.  Columbia  S.  R.  Co.,  39  Oreg.  263,  64  Pac.  Rep. 
455. 

-"  Chappius  V.  Blankman,  128  Cal.  362.  364,  60  Pac.  Rep.  925.  See 
San  Francisco  Pav.  Co.  v.  Fairfield,  134  Cal.  220,  224,  66  Pac.  Rep.  255. 


677  EViDEN-CB.  §§  778-780 

objection  is  properly  sustained  to  the  question,  "  I  will  ask 
3'ou,  if  with  the  money  j-ou  paid  and  five  hundred  dollars 
damages,  whether  the  whole  amount  of  the  contract  work 
and  the  extra  work  was  paid?"  —  as  the  question  assumed 
five  hundred  dollars  damages,  a  matter  in  dispute.-^ 

§  778.  Receipt.  A  receipt  is  prima  facie  evidence  of 
the  facts  recited  in  it,  but  is  not  conclusive,  and  a  receipt 
acknowledging  payment  of  a  debt,  whether  in  money  or  some 
other  medium,  may  be  explained  or  contradicted  by  parol. 
It  is,  however,  evidence  of  a  very  high  order,  which  should 
prevail,  unless  it  is  overcome  by  clear  and  satisfactory 
evidenee.^^    Thus  — ■ 

Payment  by  note.  The  receipt  of  a  material-man,  ex- 
pressly stating  receipt  of  "  payment  by  note,"  is  prima  facie, 
although  not  conclusive,  evidence  of  the  facts  recited; 
and  it  may  well  be  contended  that  this  is  something  more 
tha]i  a  mere  receipt  which  may  be  contradicted  by  parol 
evidence,  to  wit,  that  it  is  an  agreement  in  writing  to  accept 
the  note  as  payment. ^^ 

§  779.  Agency.^"  Agency  may  not  generality  be  estab- 
lished by  the  declarations  and  acts  of  the  alleged  agent ;  but, 
under  proper  circumstances,  the  declarations  and  acts  of  an 
agent  might  be  sufficient  to  establish  ostensible  agency,  by 
reason  of  the  failure  of  the  owner  to  exercise  ordinary  care.^^ 

§  780.  Same.  Special  statutory  provision.^-  Presump- 
tion.    But,  under  the  ])ro visions  of  the  California  mechanic's- 

=■  Barilari  v.  Ferrea,  59  Cal.  1,  4. 

=■*  .lenne  v.   Burger,   120  Cal.   444,   446,   52  Pac.  Rep.   706. 

=■'  .lenne  v.   Burg-er,    120   Cal.   444,   446,   .52   Pac.   Rep.   706. 

•■"  Iinproper  evitlenoe  of  asciioy  ailiiiitted;  on  appeal,  great  weight 
attached  to  other  evidence  improperly  admitted:  See  Williams  v. 
Hawley.  144  Cal.  9",  102,  77  Pac.  Rep.  763. 

See  §§  572  et  seq.,  ante. 

Montana.  The  law  presumes  that  every  member  of  a  mining  firm 
has  authority  to  hire  laborers  and  make  the  firm  liable  for  their 
wages,  if  they  are  necessarily  employed  in  working  upon  the  joint 
p  iperty;  and  no  evidence  of  such  authority  is  required:  Nolan  v. 
Lovelock.   1  Mont.  224. 

"  Kerr'.s  Cyc.  Civ.  Code,  §  2317.  and  note. 

'^  See  "  Agency,"  §§  572  et  seq.,  ante. 


§  781  mechanics'  liens.  678 

lien  law,  evidence  of  these  acts  and  declarations  is  permitted 
to  establish,  prima  facie,  such  agency.  Section  eleven  hun- 
dred and  eighty-three,^^  as  amended  in  1903,  gives  to  a  miner, 
for  instance,  a  lien  for  labor  done  at  the  instance  of  the 
owner  of  the  building  or  his  agent,  "  and  every  contractor, 
subcontractor,  architect,  builder,  or  other  person  having 
charge  of  any  mining,  or  work  or  labor  performed  in  and 
about  such  mining  claim  or  claims,  or  real  property  worked 
as  a  mine,  or  the  construction,  alteration,  addition  to,  or 
repair,  either  in  whole  or  in  part  of  any  building  or  other 
improvement  as  aforesaid,  or  of  such  mining  claim  or 
claims,  either  as  lessee  or  under  a  working  bond  or  contract 
thereon,  with  the  privilege  of  purchase,  or  otherwise,  shall  be 
held  to  be  the  agent  of  the  owner  for  the  purposes  of  this 
chapter." 

Where  a  forei^  corporation  owns  mines  in  this  state, 
and,  ill  its  name,  work  is  commenced,  and  its  so-called 
superintendent  buys  costly  machinery,  constructs  a  mill, 
extracts  and  reduces  ores,  employs  miners,  material-men, 
and  laborers,  takes  up  water  rights  and  mineral  claims, 
enters  into  contracts,  borrows  money,  acknowledges  service 
of  process  in  a  civil  action  to  collect  this  money,  and,  in 
general,  by  word  and  act,  holds  himself  out  and  conducts 
himself  as  the  duly  and  regularly  appointed  superintendent 
of  the  company,  these  open  declarations,  and  continued  acts 
of  the  superintendent  and  foreman,  were  admissible  in  evi- 
dence, under  this  section,  to  show  the  person  in  charge  of 
the  mining.^* 

§  781.     Same.      Overcoming      presumption.      Knowledge. 

By  the  rule  of  evidence  declared  by  section  eleven  hundred 
and  eighty-three,^^  the  showing  referred  to  in  the  preceding 
section,  if  not  disputed  or  overcome,  prima  facie  establishes 
the  agency;  but  the  owner  or  other  person  in  interest  may 
overcome  this  by  proving  his  want  of  knowledge  and  non- 

>B   Kerr's  Cyc.  Code  Civ.  Proc.,  §  1183. 

»*  Donohoe  v.  Trinity  Consol.  G.  &  S.  M.  Co.,  113  Cal.  119,  123,  45  Pac. 
Rep.    259. 

»  Kerr's  Cyc.  Code  Civ.  Proc,  §  1183. 


679  EVIDENCE.  §§  782, 783 

employment  of  the  alleged  ageut,  coupled  with  a  showing 
that  he  had  exercised  ordinary  care  in  the  premises.^** 

§  782.  Same.  Knowledge  of  lack  of  agency.  The  pre- 
sumption of  agency-  raised  by  section  eleven  hundred  and 
eighty-three  ^^  may  be  rebutted  b3'  showing  that  the  claim- 
ant worked  with  knowledge  that  the  person  in  charge  of 
the  mining  did  not  own  the  property,  and  did  not  work  the 
mine  as  the  owner's  representative,'^  and  therefore  he  is  not 
entitled  to  a  lien  thereon,  on  any  theory  of  the  agency  of 
such  person. 

§  783.  Same.  Knowledge  that  employer  incurred  in- 
debtedness on  his  own  account.  Evidence  is  also  admissible 
to  show  the  knowledge  of  claimant  that  the  employer  was  in 
possession  under  a  contract  to  make  improvements  and 
prosecute  development-work  on  a  mine,  and  prospect  at  his 
own  cost  and  expense,  and  that  he  was  to  keep  the  property 
free  from  liens ;  the  purpose  being  to  show  that  the  claimant 
was  employed  by  the  person  in  possession  on  his  own  ac- 
count, and  not  in  any  manner  as  the  agent  of  the  OAvner.^" 

=«  Donohoe  v.  Trinity  Consol.  G.  &  S.  M.  Co.,  113  Cal.  119,  123,  45  Pac. 
Rep.  259.  In  this  case  no  one  sought  to  overcome  the  prima  facie  case. 
No  direct  authorization  or  direct  ratification  of  the  acts  of  the  alleged 
superintendent  were  put  in  evidence. 

See  "Agency,"  §§572  et  seq.,  ante;  "Estoppel,"  §§469  et  seq.,  ante; 
"Due  Process  of  Law,"  §§  31  et  seq.,  ante. 

Montana.     Partner:  See  Nolan  v.  Lovelock,  1  Mont.  224. 

Oregon.  Title  G.  &  T.  Co.  v.  Wrenn,  35  Oreg.  62,  56  Pac.  Rep.  271, 
76  Am.  St.  Rep.  454.  See  Sellwood  L.  &  Mfg.  Co.  v.  Monnell,  26  Oreg. 
267,  38  Pac.  Rep.  66. 

S7  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1183. 

="*  Jurgenson  v.  Diller,  114  Cal.  491,  492,  46  Pac.  Rep.  610,  55  Am.  St. 
Rep.  83    (decided  before  the  amendment  of  1903). 

See  "Agency,"  §§572  et  seq.,  ante;  "Estoppel,"  §§  469  et  seq.,  ante; 
"Due  Process  of  Law,"  §§  31  et  seq.,  ante. 

39  Reese  v.  Bald  Mt.  Consol.  G.  M.  Co.,  133  Cal.  285,  291,  65  Pac.  Rep. 
578   (a  series  of  questions,  set  forth  in  opinion,  held  to  be  competent). 

But  see  §§  572  et  seq.,  and  §§  469  et  seq.,  ante. 

Certain  evidence  adini.s.«iibie  under  Ntiitulation  that  the  father  was 
the  agent  of  the  owner  in  the  matter:  See  Linck  v.  Johnson,  134  Cal. 
xix,   66  Pac.  Rep.  674. 

Montana.  Declarations  of  agent  as  to  account,  liearsay  as  to 
owner:  See  Missoula  M.  Co.  v.  O'Donnell,  24  Mont.  65,  60  Pac.  Rep.  991. 

\VaMiiin»?ton.  Evidence  that  architect  was  agent,  actual  or  statu- 
tory, for  the  purchase  of  materials:  See  Seattle  L.  Co.  v.  Sweeney,  43 
Wash.  1,  85  Pac.  Rep.  677. 


§§  784, 785  mechanics'  liexs.  680 

§  784.  Same.  Proof  of  knowledge  of  owner.  Under 
section  eleven  hundred  and  eighty-three,  as  it  stood  at  the 
time,  a  contract  to  sell  a  mining  claim,  which  permitted  the 
vendee  to  work  the  same  and  extract  ores  therefrom,  could 
not  be  received  in  evidence  against  the  owner,  where  the 
vendee  did  no  work  at  all  upon  the  mine,  and  the  only  pur- 
pose was  to  show  that  a  mere  watchman  was  hired  by  the 
vendee  as  constructive  agent  of  the  owner,  the  services  of 
the  watchman  and  the  acts  of  the  vendee  not  being  within  the 
purview  of  the  statute  as  to  the  creation  of  such  agency.**' 

§  785.  Burden  of  proof.*^  Generally.  The  burden  is  on 
the  claimant  to  show  that  the  person  causing  the  improve- 
ment was  the  express  or  statutory  agent  of  the  owner. •*- 

3Ieiuoranduiii  of  settlement  made  by  wife,  acting  for  the  com- 
munity, after  the  completion  of  the  structure,  admissible  to  show  the 
balance  due:  See  Powell  v.  Nolan,  27  Wash.  318,  67  Pac.  Rep.  712,  718. 

«>  Williams  v.  Hawley,  144  Cal.  97,  103,  77  Pac.  Rep.  762. 

See  §§  572  et  seq.,  ante. 

"  In  action  against  owner  for  failure  to  file  contractor's  bond, 
burden  of  proof:  See  Gibbs  v.  Tally,  63  Pac.  Rep.  168,  s.  c.  reversed, 
133  Cal.  373,   65  Pac.  Rep.  970. 

See  "  Agency,"  §§  572  et  seq.,  ante. 

As  to  validity  of  demands  and  regularity  of  liens,  see  §§  452  et  seq., 
ante. 

As  to  other  Interests,  see  §§  715  et  seq.,  ante. 

As  to  giving  notice  of  non-responsihility,  see  Hines  v.  Miller,  122 
Cal.  517,  55  Pac.  Rep.  401;  and  §§  469  et  seq.,  ante. 

Material-man.  Proof  that  amount  due  exceeded  amount  paid. 
Under  Kerr's  Cyc.  Code  Civ.  Proc,  §  1200,  a  material-man,  seeking 
to  enforce  a  lien  for  materials  furnished  a  contractor,  who  abandoned 
the  work,  held  required  to  prove  that  the  value  of  the  work  and 
materials  furnished  exceeded  the  amount  due  and  paid  to  the  con- 
tractor: McCue  V.  Jackman  (Cal.  App.,  March  16,  1908),  95  Pac.  Rep. 
673. 

Oregon.  Burden  on  claimants  to  show,  as  against  the  owner,  that 
no  payments  were  made  by  ownei-'s  lessee:  See  Lewis  v.  Beeman,  46 
Oreg.  311,  80  Pac.  Rep.  417. 

AVashington.  Burden  of  proof;  novation:  See  Kruegel  v.  Kitchen, 
33  Wash.  214,  74  Pac.  Rep.  373. 

As  to  burden  on  claimant  to  show  building  was  on  lot  described, 
and  that  all  lots  were  necessary  for  convenient  use  and  occupation, 
see  Peterman  v.  Milwaukee  B.  Co.,  11   Wash.  199,  202,  39  Pac.  Rep.  452. 

Burden  of  proof  on  claim  of  title  to  materials:  See  Potvin  v.  Denny 
H.  Co.,  37  W'ash.  323,  79  Pac.  Rep.  940,  s.  c.  26  W^ash.  309,  66  Pac.  Rep, 
376. 

■"  Reese  v.  Bald  Mt.  Consol.  G.  M.  Co.,  133  Cal.  285,  287,  65  Pac.  Rep. 
578. 

See  §§  572  et  seq.,  ante! 

3Iontana.  Burden  on  plaintiff  to  show  authority  of  agent  of  cor- 
poration, or  ratification  of  his  acts  by  the  corporation:  See  Wagner  V. 
St.  Peter's  Hospital,  32  Mont.  206,  79  Pac.  Rep.  1054. 


681  EVIDENCE.  §  786 

Breach  of  agreement.  The  burden  of  proof  is  on  the 
party  setting  np  a  breach  of  an  agreement.*'* 

Validity  of  claims  of  sublienors.  The  burden  of  proof  is 
on  the  owner,  when  he  makes  payments  to  subclaimauts,  to 
show  that  the  claims  of  lien  are  valid.** 

§  786.  Same.  Priorities.  Where  the  complaint  for  the 
foreclosure  of  a  lien  alleged  that  the  other  defendants,  Avho 
alone  answered,  had  a  mortgage  on  the  building  and  the 
land  on  w^hich  it  was  situated,  and  that  such  mortgage  was 
subordinate  and  subject  to  the  liens  of  the  plaintiff,  and  the 
defendants  denied  this  latter  allegation,  but  introduced  no 
evidence  showing  the  priority  of  their  mortgage,  it  was  held 
that  the  burden  of  showing  such  priority  was  on  the  de- 
fendants, and  that  the  court  was  justified  in  finding  that 
their  lien  w^as  subordinate  and  subject  to  that  of  plaintiffs; 
the  court  saying,  "  If  the  defendants,  in  their  answer  to  that 
allegation,  had  stated  facts  which  showed  that  their  claim 
was  not  subordinate  or  subject  to  the  liens  of  the  plaintiffs, 
they  w^ould  have  had  the  affirmative  of  the  issue.  And  it 
was  their  '  business,  when  thus  called  upon,  to  disclose  '  the 
nature  of  their  claim.*^  .  .  .  By  not  doing  so,  they  certainly 
occupy  no  better  position  than  they  w^ould  if  they  had  done 
so.  Concediiig  that  the  denial  of  the  defendants  raised  an 
issue,  we  think  it  was  one  of  which  they  had  the  affirm- 
ative." *® 

^2  Bancroft  v.  San  Francisco  T.  Co.,  120  Cal.  228,  234,  52  Pac.  Rep.  496. 

"Wilson  V.  Nugent,  125  Cal.  280,  289,  57  Pac.  Rep.  1008. 

See  §§  514,  525  et  seq.,  ante. 

Montana.  The  burden  of  proof  is  on  claimant  to  establish  his  lien: 
Missoula  M.  Co.  v.  O'Donnell,  24  Mont.  65,  60  Pac.  Rep.  594,  991. 

L'tah.  In  McCorniok  v.  Saddler,  10  Utah  210,  37  Pac.  Rep.  332,  it 
was  held  that  the  burden  was  on  the  plaintiff,  the  assignee  of  the 
contractor,  in  an  action  for  the  balance  of  the  contract  price,  after 
the  payment  of  liens  had  been  made,  as  agreed  between  plaintiff  and 
defendant,  to  show  that  the  claim  of  a  material-man  paid  by  the  de- 
fendant owner  was  not  a  lien  upon  the  property  of  the  defendant,  as 
alleged  in  his  answer   (Minor,  J  ,  dissenting). 

Burden  of  proof  on  lion  olaiiiiant;  and  his  books  should  be  properly 
kept,  so  that  one  can  clearly  ascertain  the  amount  chargeable  to  the 
particular  property:  Knudson-.Iacob  Co.  v.  Brandt  (Wash.,  Sept.  25, 
1906),  87  Pac.  Rep.  43  (but  this  latter  proposition  goes  rather  to  the 
weight  of  the  evidence). 

*■•  Citing  Antliony  v.  Nye,  30  Cal.  401. 

"  Harmon  v.  Ashmead,  68  Cal.  321,  323,  9  Pac.  Rep.  183. 

See  "Pleading,"  §§.715,  716,  ante;  "Answer,"  §§  738  et  seq.,  ante. 


§§  787-789  mechanics'  liens.  682 

§  787.  Same.  Time  of  filing  claim  of  lien.  In  an  action 
to  foreclose  the  lien  of  the  original  contractor's  subclaimant, 
the  burden  of  proof  was  held  to  be  on  the  plaintiff  to  show 
the  completion  of  the  building  within  the  statutory  time, 
or  thirty  days  prior  to  the  filing  of  the  claim  of  lien." 

§  788.  Same.  Cessation  from  work.  Where  the  work 
on  a  building  ceased  at  a  prior  time  for  thirty  days  before 
another  and  subsequent  cessation  of  work,  in  attacking  a 
lien  under  section  eleven  hundred  and  eighty-seven,  as  it 
stood  at  the  time,  the  owner  had  the  burden  of  showing,  not 
that  there  might  possibly  have  been  such  earlier  stoppage 
of  work  for  thirty  days,  but  that  it  actually  happened.*** 

§  789.  Certificate  as  evidence.*^  A  written  certificate  for 
the  completion  payment,  duly  signed  by  the  architect,  placed 

Colorado.  The  onus  is  on  the  lien  claimant  to  establish  his  right 
of  priority  under  the  statute:  Mellor  v.  Valentine,  3  Colo.  260;  also, 
that  the  person  he  contracted  with  was  the  owner:  Rico  R.  &  M.  Co. 
V.  Musgrave,   14  Colo.  79,  23  Pac.  Rep.  458    (1883). 

«  Schallert-Ganahl  L.  Co.  v.  Sheldon  (Cal.,  Feb.  9,  1893),  32  Pac. 
Rep.  235.  The  same  rule  would  seem  to  be  applicable  to  show  that 
the  claim  was  filed  within  ninety  days,  or  within  thirty 'days  after 
the  filing-  of  the  owner's  notice  of  completion,  since  tlie  amendment  of 
1897  to  §  1187  of  the  Code  of  Civil  Procedure. 

See  "Performance,"  §§  334  et  seq.,  ante;  "Notice,"  §§  425  et  seq.,  ante. 

Colorado.  Burden  of  proof  on  claimant;  time  of  last  work:  Stidger 
V.  McPhee,   15  Colo.  App.  252,  62  Pac.  Rep.  332. 

Montana.  "The  commencement  of  the  work  must  be  shown;  for 
from  that  date  the  lien  attaches,  if  at  all.  The  character  of  the  work 
must  be  shown;  for  it  is  not  for  all  kinds  of  work  that  a  lien  is 
allowed.  The  completion  of  the  work  must  be  shown;  for  notice  of 
claiming  a  lien  must  be  filed  in  the  recorder's  office  within  sixty  days 
from  that  time.  This  proof  must  be  furnished  by  the  party  who 
asserts  the  existence  of  the  lien":  Davis  v.  Alvord,  94  U.  S.  545,  547, 
bk.  24  L.  ed.  283. 

«  Marble  L.  Co.  v.  Lordsburg  H.  Co.,  96  Cal.  332,  336,  31  Pac.  Rep. 
164. 

See   "Cessation,"   S§  354   et  seq.,   ante. 

Oregon.  The  burden  is  on  the  owner  to  allege  and  prove  that 
some  of  the  material,  if  the  accurate  amount  thereof  was  capable  of 
computation  in  advance,  or  if  not,  that  an  unnecessary  qiiantity 
thereof  remained  unused  after  the  building  was  fully  completed,  or 
that,  without  his  consent,  it  had  been  removed  from  the  building  site: 
Fitch  v.  Hewitt,  32  Oreg.  396,  52  Pac.  Rep.  192.  See  Allen  v.  Elwert, 
29  Oreg.  428,  44  Pac.  Rep.  823,  48  Pac.  Rep.  54. 

*»  See  "  Certificates  in  Contract,"  S§  239  -et  seq.,  ante. 

Colorado.  Stipulation  between  lien-holders,  fixing  amounts  due, 
and  reciting  that  subcontractors  had  liens,  admissible:  Charles  v. 
Hallack  L.  Co.,  22  Colo.  2S3,  43  Pac.  Rep.  548. 

Washington.     See  Brown  v.  Winehill,  3  Wash.  524,  28  Pac.  Rep.  1037. 


683  EVIDENCE.  §  "90 

in  evidence,  is  some  substantial  evidence  that  the  architect 
was  satisfied  with  the  building,  and,  if  followed  bj^  the  owner 
going  into  possession  of  the  structure,  is  evidence  of  the 
acceptance  thereof  on  the  part  of  the  owner,  as  well  as  the 
architect/"'" 

Where  the  architect  makes  oral  declarations,  whether  be- 
fore or  after  giving  such  certificate,  that  he  was  not  satisfied 
with  the  building,  the  statements  can  hardly  be  taken  b}'  the 
trial  judge  as  impeaching  such  certificate.^^ 

§  790.  Same.  Conclusiveness  of  certificate.  The  certifi- 
cate of  the  architect  is  conclusive  of  the  rights  of  the  parties 
under  the  original  contract,  as  to  payments  based  upon 
such  certificate,  unless  it  can  be  shown  that  it  was  obtained 
by  the  owner  by  collusion,  fraud,  or  mistake,  when,  under 
the  contract,  it  is  the  duty  of  the  architect  to  certify  that 
such  payments  are  due.^^ 

^^  Wyman  v.  Hooker,   2  Cal.  App.  36.  39.  83  Pac.  Rep.  79. 

Resolution  of  board  of  supcrvi.sors,  reciting  that  work  had  been 
done  to  satisfaction  of  superintendent  of  streets,  competent  evidence 
of  such  satisfaction,  as  required  by  contract:  Thomason  v.  Richards, 
135  Cal.  XX,  67  Pac.  Rep.  1056. 

Evidence  as  to  diK^ing  up  and  di.sturbinfj  .street,  permission  beins 
granted  under  ordinance:  See  Flinn  v.  Mowry,  131  Cal.  481,  4SS,  63 
Pac.   Rep.   724,   1006. 

niontana.  Testimony  as  to  estimates  inadmissible:  See  Cook  v. 
Gallatin  R.  Co.,  28  Mont.  320,  72  Pac.   Rep.  678. 

Impeaoliin^  ^vitnes.s  as  to  estimate  of  work  by  statements  as  to 
erroneousness  thereof:  See  Cook  v.  Gallatin  R.  Co..  28  Mont.  340,  72 
Pac.  Rep.   678. 

Oreson.  Evidence  of  refusal  of  architect  to  give  final  certificate  at 
instance  of  owner:  See  Vanderhoof  v.  Shell,  42  Greg.  578,  72  Pac.  Rep. 
126. 

Washington.  Evidence  of  approval  of  building-inspector  of  work, 
contrary  to  law  and  contrary  to  contract,  excluded:  See  Ekstrand  v. 
Earth,  41  Wash.  321,  83  Pac.  Rep.  305. 

"  Wyman  v.  Hooker,  2  Cal.  App.  36.  39,  83  Pac.  Rep.  79. 

^2  Dingley  v.  Greene.  54  Cal.  333,  337. 

Conclusiveness  of  certilicatc  as  to  -^vork  being  done  according  to 
contract:  question  raised,  but  not  decided,  in  Donnelly  v.  Adams,  115 
Cal.  129,  132,  46  Pac.  Rep.  916. 

See  "  Terms  of  Contract,"  §§  239  et  seq.,  ante. 

Conclusiveness  of  engineer's  estimate  for  additional  earth,  under 
contract  for  emliankment,  up  to  limit  specified  in  contract:  See  Scan- 
Ian  V.  San  Francisco  &  S.  J.  V.  R.  Co.  (Cal.,  Dec.  23,  1898),  55  Pac.  Rep. 
694. 

Idaho.  Final  certificate  or  estimate  of  architect  not  conclusive 
under  contract:  See  Huber  v.  St.  Joseph's  Hospital,  11  Idaho  631,  83 
Pac.    Rep.    768. 


§  791  mechanics'  liexs.  684 

§  791.  Same.  Certificate  as  evidence  of  time  of  com- 
pletion of  building.  Where  the  contract  provides  that  the 
architect,  before  the  last  payment  is  made,  shall  show  a 
certificate  for  the  purpose  of  indicating  when  the  final  in- 
stalment is  payable,  the  date  of  the  certificate  is  not  evi- 
dence of  the  time  of  the  completion  of  the  building.^^  Where 
the  contract  provides  for  certificates  of  the  architect  for 
payments  under  the  contract,  a  certificate  that  "  the  build- 
ing is  now  finished  as  per  contract,"  and  that  the  contractor 
is  entitled  to  the  last  payment,  is  not  evidence  of  the  time 
of  the  completion  of  the  building.^* 

With  reference  to  this  subject,  the  court  has  said:^^ 
"  The  contract  provided,  among  other  things,  that  the  work 
should  be  done  '  to  the  satisfaction  of  the  superintendent 
of  public  streets  of  said  city  and  county,'  and  appellant 
offered  in  evidence  a  certificate  of  the  superintendent,  by 
a  deputy,  that  the  work  '  has  been  done  to  my  satisfaction.' 
Respondent  objected,  on  several  grounds,  to  the  admission  of 
this  certificate  in  evidence,  and  the  objection  was  sustained. 
Appellant  contends  that  this  ruling  was  erroneous,  and  that 
as  the  lien  was  filed  within  sixty  days  after  the  date  of 
said  certificate,  therefore  it  was  filed  in  time.  But  this  con- 
tention cannot  be  maintained.  Assuming  that,  as  evidence 
of  the  work  having  been  done  to  the  satisfaction  of  the 
superintendent,  as  provided  in  the  contract,  the  certificate 
or  written  declaration  of  the  superintendent  was  admissible, 

\Vashinstoii.  Architect's  certificate  only  prima  facie  evidence, 
unless  made  conclusive  bj'  contract:  Dyer  v.  Middle  Kittitas  Irr. 
Dist.,    40   Wash.    238,    82   Pac.   Rep.    301. 

Pr«M»f  that  architect's  certificate  was  Riven  without  sufficient  in- 
ve.stigati(m:  See  Gritman  v.  United  States  F.  &  G.  Co.,  41  Wash.  77, 
83  Pac.  Rep.   6. 

Certificate  of  chief  engineer  of  railroad,  under  contract  making 
It  conclusive,  held  to  be  conclusive,  although  not  following-  the 
language  of  contract:  See  Eastham  v.  Western  C.  Co.,  36  Wash.  7, 
77   Pac.   Rep.    1051. 

M  Washburn  v.  Kahler,  97  Cal.  58,  61,  31  Pac.  Rep.  741.  And  see 
McLaughlin  v.  Perkins,   102  Cal.   502,   505,   36  Pac.  Rep.   839. 

See   "  Contract,"   §§   239   et  seq.,  ante. 

^  Washburn  v.  Kahler,  97  Cal.  58,  61,  31  Pac.  Rep.  741.  See  Beatty 
V.  Mills,   113  Cal.  312,   313,   45  Pac.  Rep.   468. 

See  "Certificates,"  §§  2.39  et  seq.,  and  §§  789  et  seq.,  ante. 

AVashington.  Washington  B.  Co.  v.  L.  &  R.  Imp.  Co.,  12  Wash.  272, 
40   Pac.   Rep.   982. 

65  Beatty  v.  Mills,  113  Cal.  312,  45  Pac.  Rep.  468. 


685  EVIDENCB.  §  792 

and  not  mere  hearsay,  and  assuming  further,  that,  for  the 
purposes  of  the  contract,  a  eertilicate  of  a  deputy  was  a 
certificate  of  tlie  superintendent,  still  such  certificate  could 
not  change,  nor  in  any  Avay  affect,  the  statutory  period 
within  which  a  lien  must  be  filed.  And  that  period  com- 
mences at  the  date  of  the  completion  of  the  Avork.  By  the 
contract  the  superintendent  was  arbiter,  at  most,  of  only  the 
quality  of  the  work,  and  his  certificate  only  purports  to  state 
that  the  work  which  had  been  done  was  done  well  and  to  his 
satisfaction.  If  it  had  contained  a  statement  of  the  date 
of  the  completion  of  the  work,  such  statement  would  have 
been  of  no  value."  ^^ 

§  792.     Completion    of   building-."     Whether    there    was 
a.  completion  of  the  building,'^  and  the  time  of  completion,'^" 
are  questions  of  fact  for  the  trial  court  to  determine. 

»«  Beatty  v.  MiUs,  113  Cal.  312,  313,  45  Pac.  Rep.  468.  See  Washburn 
V.  Kahler,  97  Cal.  .58,  »61,  31  Pac.  Rep.  741;  Warren  v.  Ferguson  108 
Cal.  535,  41  Pac.  Rep.  417. 

See  "Completion,"  SS  792  et  seq.,  post;  "Architects,"  §§119  et  seq., 
ante;  "Performance,"  §§  334  et  seq.,  ante;  "PMIing-  Claim,"  §§  416 
et  seq.,  ante. 

Colorado.  Evidence  of  custom  of  estimates  by  engineer,  in  tlie 
absence  of  agreement,  admissible:  See  Bradbury  v.  Butler,'  1  Colo 
App.   430,   29   Pac.  Rep.  463. 

•'''  See,  generally,  "Performance,"  §§354  et  seq.,  ante;  "Contract" 
S  801,  post;   "Questions  of  Fact,"   §  827.   post. 

AVitness  allowed  to   explain,   on  redirect   examination,   that  a  letter 
fixing  time  of  delay  at  less  than  that  claimed  was  written  in  attempt 
to  effect  an  amicable  settlement:    Hale  v.  Milliken   (Cal.  App.,  May  31 
1907),   90  Pac.   Rep.   365,   373. 

Uuilding  to  be  completed  by  certain  date;  harmless  error  in  strik- 
ing out  evidence  as  to  conversations  relating  to  extensions  of  time- 
Hale    V.    Milliken    (Cal.    App.,    May    31,    1907),    90    Pac.    Rep.    365. 

Rejection  of  evidence  an  to  waiver  of  provision  in  contract  re- 
quiring extension  of  time  to  be  in  writing,  error:  See  Huber  v.  St 
Josepli's  Hospital,    11    Idaho   631,   S3   Pac.   Rep.   768. 

Montana.  "  Mortgagees  and  others  acquiring  interests  in  tlie 
property  against  which  such  a  lien  is  sought  to  be  enforced  have  a 
riglit,  therefore,  to  call  for  strict  proof  of  all  that  is  essential  to  the 
creation  of  the  lien,  and  that  includes  proof  of  the  commencement 
of  the  work,  of  its  character,  and  of  its  completion:  Davis  v  Alvord 
94   U.   S.   545,   547,   bk.    24   L.   ed.    283. 

'-^  Marble  L.  Co.  v.  Lordsburg  Hotel  Co.,  96  Cal.  332  334  3i  Pac 
Rep.  164. 

•"■»  Willamette  S.  M.  Co.  v.  Kremer,  94  Cal.  205.  208.  29  Pac.  Rep. 
633;  Coss  v.  MacDonough,  111  Cal.  662.  666,  44  Pac.  Rep.  325- 
Willamette  S.  M.  Co.  v.  Los  Angeles  College  Co.,  94  Cal.  229,  238  29 
Pac.  Rep.  629. 


§§  793-795  mechanics'  liens.  686 

The  original  contract,  even  if  void,  is  admissible  to  de- 
termine the  character  of  the  building  to  be  erected,  and 
thereby  to  furnish  the  test  by  which  it  can  be  known  when 
the  building  was  completed,  for  the  purpose  of  filing  liens."" 

§  793.  Same.  Statutory  evidence.  Under  section  eleven 
hundred  and  ninety-seven,''^  as  amended  in  1887  and  1897, 
the  occupation  and  use  of  a  building  by  the  owner,  or  his 
acceptance  thereof,  or  cessation  of  work  on  any  unfinished 
contract,  or  building,  improvement,  or  structure,  has  been 
held  conclusive  evidence  of  the  completion,  or,  by  the 
amendment  of  1897,  "  equivalent  to  completion,"  for  the 
purpose  of  filing  subclaimants'  claims  of  lien."- 

§  794.  Non-completion  of  building.  When  it  is  made  to 
appear  that  it  was  the  original  purpose  of  the  owner  to 
erect  and  construct  a  building  in  part  only,  or  that  the 
owner,  having  proceeded  to  erect  the  house  in  part,  aban- 
doned his  design  in  finishing  it,  the  building  should  be  held 
to  be  completed,  within  the  meaning  of  section  eleven  hun- 
dred and  eighty-seven,"^  from  the  time  it  was  so  built  in 
part,  for  the  purpose  of  filing  liens."* 

§  795.  Claim  of  lien."^  As  evidence  of  lien.  It  has  been 
said  that  the  office  of  filing  the  claim  is,  among  other  things, 

6»  Barker  v.  Doherty,  97  Cal.  10,  12,  31  Pac.  Rep.  1117;  Joost  v. 
Sullivan,  111  Cal.  286,  292,  43  Pac.  Rep.  896. 

See  "  Performance,"  §§  334  et  seq.,  ante. 

"  Kerr's  Cyc.  Code  Civ.  Proc.,  §   1197. 

«2  See  "Filing-  Claim  of  Lien,"  §§416  et  seq.,  ante;  "Occupation, 
Use,  and  Acceptance,"  §§350  et  seq.,  ante;  "Cessation,"  §§354  et 
seq.,  ante. 

"  Rule  has  reference  not  only  to  the  occuiiation,  use,  or  acceptance 
of  a  dwelling  or  otiier  house,  but  to  any  kind  of  structure,  building, 
or  improvement  in  which  the  materials  of  the  lien  claimant  have 
been  used":  Giant  P.  Co.  v.  San  Diego  F.  Co.,  88  Cal.  20,  23,  25  Pac. 
Rep.  976;  Joost  v.  Sullivan,  111  Cal.  286,  292,  43  Pac.  Rep.  896;  Giant 
P.  Co.  V.  San  Diego  F.  Co.,  78  Cal.  193,  195,  20  Pac.  Rep.  419;  W'illam- 
ette  S.  M.  Co.  V.  Los  Angeles  C.  Co.,  94  Cal.  229,  239,  29  Pac.  Rep.  629. 

«3  Kerr's  Cyc.  Code  Civ.  Proc,   §   1187. 

"  Schwartz  v.  Knight,  74  CaL  432,  434,  16  Pac.  Rep.  235. 

«5  See,  generally,  §§  3<1  et  seq.,  ante;  "Rights  of  Owner,"  §§510 
et  seq.,   ante. 

Attorney  for  contractor  failing  to  file  claim  of  lien  for  siibclaimant; 
evidence  of  knowledge  as  to  attorneyship:  See  Perkins  v.  West  Coast 
L.  Co.,  129  Cal.  427,  62  Pac.  Rep.  57. 


687  EVIDENCH.  §  795 

to  give  notice  of  the  claim,  and  not  to  serve  as  evidence 
of  the  lien.""  But  by  this  language  it  was  evidently  not 
meant  that  the  claim  of  lien  was  not  admissible  in  evidence 
to  show  that  one  of  the  steps  in  perfecting  the  lien  had  been 
taken. 

The  recorder's  indorsement  of  tiling  on  the  claim  of  lien 
is  prima  facie  evidence,  at  least,  of  the  tiling  and  the  date 
of  its  record."^ 


««  Corbett  v.  Chambers,  109  Cal.  178,  183,  41  Pac.  Rep.  873.  See 
"Nature  and  Object  of  Claim,"  §§361  et  seq.,  ante;  "Notice,"  §§  547 
et  seq.,  ante. 

Colorado.  Tlie  statement  is  not  even  prima  facie  evidence  of  tlie 
truth  of  anything  which  it  contains:  Mouat  K  &  I.  Co.  v.  Freeman,  7 
Colo.  App.   152,  42  Pac.  Rep.   1040    (1883,   1889). 

Montana.  The  claim  of  lien  is  not  evidence  against  the  owner  as 
to  the  nature  of  the  work  or  the  commencement  thereof:  Davis  v. 
Alvord,  94  U.  S.  545,  547,   bk.  24  L.  ed.   283. 

«'  Silvester  v.  Coe  Quartz  M.  Co.,  80  Cal.  510,  512,  22  Pac.  Rep.  217. 
218. 

Montana.  On  the  trial  it  is  not  necessary  to  prove  the  filing  of  the 
lien  before  evidence  can  be  offered  that  the  materials  entered  into  the 
construction  of  the  building:  Bardwell  v.  Anderson,  13  Mont.  87,  32 
Pac.  Rep.   285.     Sundry  objections  made  to  account:   Id. 

Oklahoma.  Indorsement  on  claim  of  lien  of  service  on  owner,  held 
incompetent,  but  some  evidence,  if  not  objected  to:  See  Ryndak  v. 
Seawell,  13  Okl.   737,  76  Pac.  Rep.  170. 

Wa»ihinston.  See,  citing  the  California  case,  Garneau  v.  Port 
Blakeley  M.  Co.,   8  Wash.  467,   36  Pac.  Rep.   463. 

Contra:   Jewett  v.   Darlington,    1    Wash.   Ter.   601. 

It  was  held,  under  the  logging-lien  law  (Laws  1893,  p.  428),  that 
affirmative  proof  that  the  notice  was  properly  indexed  in  the  auditor's 
office  is  not  essential  to  recovery  thereon:  McPherson  v.  Smith,  14 
Wash.   226,   44   Pac.   Rep.   255. 

Certified  cojiy  of  the  notice  and  proof  of  it.**  record  are  competent 
evidence:  Id. 

Auditor's  certificate  of  recording  notices,  and  an  additional  certifi- 
cate that  they  were  "as  the  same  appear  of  record,"  prove  the  fact 
and  date  of  record:  Fairhaven  L.  Co.  v.  Jordan,  5  Wash.  729,  32  Pac. 
Rep.  729. 

.Mere  filing  indorsement  of  date  an<l  page  of  record  e.xecuted  by  the 
county  auditor  was,  in  an  early  case,  held  to  be  evidence  of  nothing: 
Jewett  V.  Darlington,  1  W'ash.  Ter.  601  (logger's  lien).  See  also  Cowie 
v.  Ahrenstedt.   1    Wash.  416,   418.   25  Pac.  Rep.  458. 

As  to  claim  duly  executed  and  recorded  not  proving  itself,  but  only 
a  tentative  charge  against  the  property,  see  Beebe  v.  Redward,  35 
W^ash.  615,  77  I'ac.  liep.   1052,   1U55. 

However,  a  claim  of  lien,  produced  by  claimant  who  testified  that 
he  filed  it,  is  admissible;  there  being  a  certificate  of  the  auditor,  under 
his  seal,  as  to  the  filing  and  recording  of  the  instrument:  Powell  v, 
Nolan,   27  Wash.   318,  67   Pac.  Rep.   712,   719. 

Original  claim  of  lien  is  competent  evidence,  if  its  record  is  also 
shown  by  competent  evidence  (evidence  of  county  auditor,  reading 
£rom  record) :  Greene  v.  Finnell,  22  Wash.  186,  60  Pac.  Rep.  144. 


§  796  mechanics'  liexs.  688 

§  796.     Same.     Objections  to  contents  of  claim.^^     It  is  no 

object iou  to  admitting  a  claim  of  lien  in  evidence,  that  it 
does  not  state  the  name  of  the  reputed  owner  of  the  fee.®® 

Name  of  owner  or  reputed  owner.  And  a  claim  of  lien 
which  complies  with  the  requirements  of  the  statute  as  to 
form,  where  there  is  no  evidence  to  contradict  its  terms,  at 
the  time  it  is  offered,  may  be  admitted,  when  the  defendants 
object  to  its  introduction  upon  the  ground  that  it  does  not 
correctly  state  the  names  of  either  the  owner  or  owners,  or 
reputed  owner  or  owners,  of  the  premises."" 

Description.  It  seems  that  a  fatally  insufficient  descrip- 
tion in  the  claim  of  lien  cannot  be  helped  out  by  parol 
evidence.'^ 

^^  P«>iuting;  out  specific  objection  as  to  variance  bet^'een  claim  of 
lien  offered  and  claim  pleaded:  See  Georges  v.  Kessler,  131  Cal.  183, 
185,   63  Pac.  Rep.  466. 

Pointing  out  specific  objection  as  to  variance  between  tlie  contract 
as  set  out  in  the  complaint  and  tlie  claim  of  lien:  See  Georges,  v. 
Kessler.   131  Cal.   183,  185,   63  Pac.  Rep.  466. 

AVashington.  Objections  to  sufficiency  of  claim  of  lien  should  t  e 
raised  at  the  time  it  is  offered.  So  of  objection  as  to  variance  between 
claim  and  complaint:  Greene  v.  Finnell,  22  Wash.  186,  60  Pac.  Rep.  144. 
See  Bolster  v.  Stocks,  13  Wash.  460.  43  Pac.  Rep.  532,  534,  1099:  Price 
V.  Scott,  13  Wash.  574,  43  Pac.  Rep.  634;  Sweeney  v.  Pacific  C.  E.  Co., 
14  Wash.  562,   45  Pac.  Rep.  151. 

Vnder  lien  \a^v  in  force,  amendments  were  authorized;  hence  reason 
for  specific  objections  to  claim  upon  introduction  well  founded:  See 
Greene  v.  Finnell,  22  Wash.  186,  60  Pac.  Rep.   144. 

«9  West  Coast  L.  Co.  v.  Newkirk,  80  Cal.  275,   280,   22   Pac.  Rep.   231. 

See   "  Names,"   §§  379  et  seq.,  ante. 

Idaho.  Evidence  as  to  name  of  group  of  mining  claims  given  in 
claim  of  lien,  admissible:  See  Phillips  v.  Salmon  River  M.  &  D.  Co.,  9 
Idaho  149,  72  Pac.  Rep.  886. 

">  Kelly  v.  Lemberger   (Cal.,  Sept.  15,  1896),  46  Pac.  Rep.  8. 

See  "Variances,"   §§835  et  seq.,  post. 

Conveyances  on  record  as  evidence  of  reputed  OT»nersJ»ip:  See  §§  379 
et  seq.,  ante. 

AVashingrton.  In  Wheeler,  O.  &  Co.  v.  Ralph,  4  Wash.  617,  30  Pac. 
Rep.  709,  it  was  held  that  where  the  claim  is  offered  in  evidence  for 
the  purpose  of  establishing  a  lien,  all  questions  going  to  the  suffi- 
ciency of  the  notice,  if  not  raised  at  the  time  of  its  offer,  will  be 
deemed  waived;  but  it  seems  that  there  was  also  an  express  waiver 
of  objections  to  the  claim. 

"  Montrose  v.  Conner,   8  Cal.   344,  347. 

See  "Description,"  §§.399  et  seq.,  ante;  but  see  §  768,  ante. 

Montana.      Goodrich  L.  Co.  v.  Davie,  13  Mont.  76,  32  Pac.  Rep.  282. 

>eTi-  3lexico.  Likewise  as  to  an  insufficient  verification:  Finane  v. 
Las  Vegas  Hotel  Co.,  3  N.  M.  256,  5  Pac.  Rep.   725. 

Oregon.  The  proof  must  show  that  the  description  in  the  claim  is 
the  same  as  that  in  the  complaint:  and  wliere  the  claim  stated  that  the 
lanci  was  part  of  a  certain   lot,   fully   described  in   a  certain   deed   re^ 


689  EVIDENCE.  §§707.798 

§  797.  Extra  work.  In  the  absence  of  an  allegation 
in  the  complaint  as  to  extra  work,  it  has  been  held  that  a 
general  statement  as  to  its  value  and  character  is  insufficient; 
there  should  be  allegation  and  evidence  in  detail  as  to  what 
the  extra  work  consisted  of  and  the  value  thereof.'-  Where 
it  is  alleged  in  the  complaint  that  the  plaintiff  performed 
extra  work  for  an  agreed  price  of  five  dollars,  as  set  forth 
in  the  claim  of  lien,  and  this  allegation  is  not  denied  by  the 
defendant  in  his  answer,  this  admission  supports  the  state- 
ment in  the  claim  of  lien  for  extra  work.'^ 

§  798.  Valid  contract.'*  Where  evidence  is  introduced 
to  show  that  the  architect  accepted  the  building,  and  that 
the  contract  was  executed  on  the  part  of  the  plaintiff,  and 
that  nothing  remained  but  the  payment  of  the  mone}'  due, 
the  pleader,  under  these  circumstances,  being  allowed  to  set 
forth  his  cause   of  action  under  the   common   counts,   may 

ferred  to  by  date  and  place  of  record,  and  the  complaint  described  the 
land  by  metes  and  bounds  as  part  of  the  same  lot,  an  issue  being'  raised 
by  the  answer  that  the  claim  did  not  describe  the  land  as  alleged  in  the 
complaint,  no  lien  could  be  decreed,  if  the  deed  was  not  introduced  in 
evidence:  Moreliouse  v.  Collins,   23  Oreg.   138,  31  Pac.  Rep.  295. 

I  tall.  Essential  averments  omitted  cannot  be  supplied  by  extrinsic 
evidence:  Morrison  v.  Willard,  17  Utah  306,  53  Pac.  Rep.  832,  70  Am. 
St.  Rep.   784. 

>VnMliinKtuii.  See  Stetson  &  P.  M.  Co.  v.  McDonald,  5  Wash.  496,  32 
Pac.  Rep.  108. 

"'■  Sweeney  v.  Meyer.   124  Cal.   512.  516,  57  Pac.  Rep.  479. 

As  to  extra  work,  see  1  Am.  &  Bng.  Ann.  Cas.  950. 

"  McGinty  v.  Morgan,  122  Cal.  103,  54  Pac.  Rep.  392,  393. 

See  §  766,  ante. 

'*  Contract  as  evidence  of  value:  See  §  829.  post. 

Contract  a.**  evidence,  npon  deviation,  ahan<l4»ninent,  etc.:  See  "Com- 
plaint. In  General,"  §§672  et  seq.,  ante;  "Variances  Generally," 
§S  835  et  seq.,   post:   "Forfeiture  and   Fraud,"  §§822  et  seq.,   post. 

Contract  as  evidence  of  c«»ni|tletion:  See  §§792   et  seq.,  ante. 

I're.suniiition  of  knowledge  of  vaU«l  contract:  See  §§  315  et  seq.,  ante. 

I^rsiMiire.s  and  inlerlincationx.  Attempted  erasure  not  an  erasure: 
See  Sullivan  v.  C;ilil'ornia  li.  Co.,  142  Cal.  201.  204,  205.  75  Pac.  Rep. 
767. 

Party  urging;  rejection  of  erased  portion  of  contract,  and  also  its 
reception  in  evidence:  See  Sullivan  v.  California  R.  Co.,  142  Cal.  201, 
205,  75  Pac.  Rep.  767. 

Hawaii.  Fraudulent  interlineations  after  execution,  rendering  con- 
tract  \oid;  .See  Apona  v.   Kamai,   6   Hawn.   707. 

\>  a.HliinKton.     Corrections  and  interlineations  made  before  contract 
and    specifications    executed;    the    latter    admissible:    See    Crowley    v. 
United  States  F.  &  G.  Co.,  29  Wash.  268,  69  Pac.  Rep.   784. 
Mech.   Liens  —  44 


§  799  mechanics'  liens.  690 

introduce  in  evidence  the  special  contract,  at  least  if  valid, 
as  an  admission  of  the  standard  of  value,  or  as  proof  of  any 
other  facts  necessary  to  the  recovery.'" 

Contract  as  evidence  in  action  on  contractor's  bond.  In 
an  action  on  the  contractor's  bond  referring  to  the  contract, 
it  is  proper  to  show  what  the  original  contract  Avas ;  and  the 
building  contract  referred  to  in  the  bond  is  admissible  in 
evidence  for  that  purpose.'^® 

§  799.     Same.     Parol  modifications   of  written   contract. 

Where  an  original  contract  is  entirely  superseded  by  a  sub- 
seciuent  parol  modification  of  it,  and  if  it  expressly  provides 
for  alterations,  deviations,  additions,  and  omissions  upon 
request,  and  for  a  reasonable  rebate  from  or  addition  to 
the  price  on  account  thereof,  such  modification  as  was  in 
fact  made  upon  request  is  properly  provable  by  parol  evi- 
dence; and  in  such  case  the  written  contract  is  admissible 
in  evidence  to  determine  how  far  it  had  been  performed, 
and  to  ascertain  the  stipulated  time  and  mode  of  payment, 
in  order  to  give  it  effect  as  far  as  it  may  be  applicable  in 
connection  with  the  parol  modification  of  it." 

"  Castagnino  v.  Balletta,   82  Cal.  250,  259,  23  Pac.  Rep.   127. 

See   "  Value,"    §§  829   et   seq.,   post. 

As   to   ailniissibility   of   special    contract    under   conimou    counts,    see 

Reynolds  v.  Jourdan,  6  Cal.  108;  Steward  v.  Hinkel,  72  Cal.  187,  13  Pac. 
Rep.  494;  Castagnino  v.  Balletta,  82  Cal.  250,  259.  23  Pac.  Rep.  127; 
Nichols  V.  Randall,   136  Cal.  426,   69  Pac.  Rep.  26. 

'»  Kurtz  V.  Forquer,   94  Cal.   91,   94,   29  Pac.  Rep.   413. 

"  White  V.  Soto,  82  Cal.  654,  657,  23  Pac.  Rep.  210;  O'Connor  v. 
Dingley,  26  Cal.  11,  20,  23.  But  it  has  been  shown  that,  at  least  in 
certain  cases,  no  alteration  of  the  original  contract  affects  any  lien 
of  subcontractors:  Kerr's  Cyc.  Code  Civ.  Proc,  §1184;  see  "Altera- 
tion of  Contract,"  §§  326  et  seq.,  ante;  except  with  their  written  con- 
sent to  the  waiver  or  impairment  thereof:  Kerr's  Cyc.  Code  Civ.  Proc, 
§1201;  see  "Waiver  and  Release,"  §§627  et  seq.,  ante.  It  was  for- 
merly held  that  a  subsequent  contract  changing  the  terms  of  the 
original  contract  was  not  admissible  in  evidence  against  lien  claim- 
ants, without  evidence  of  their  knowledge  of  it  prior  to  furnishing 
materials:  Shaver  v.  Murdock,  36  Cal.  293,  297   (1862). 

In  a  suit  brought  on  quantum  meruit,  for  work  and  labor,  testimony 
is  admissible  to  prove  that  tlie  original  contract  has  been  changed  at 
the  request  of  the  defendants,  and  the  value  of  extra  work  per- 
formed:  Mowry  v.   Starbuck,    4  Cal.   274. 

Utah.  Conversations  held  after  contract  of  employment,  as  to  rate 
of  compensation:  See  Sandberg  v.  Victor  G.  &  S.  M.  Co.,  24  Utah  1,  66 
Pac.  Rep.  360,  363. 


691  EVIDENCE.  §§  800-803 

§  800.  Same.  Contract  admissible  to  show  character  of 
building.  It  has  already  been  shown  that  the  original  eon- 
tract,  whether  valid  or  void,  is  admissible  in  evidence  to 
determine  the  character  of  the  building  to  be  erected,  and 
thereby  to  furnish  the  test  by  which  it  can  be  known  when 
the  building  is  completed,  for  the  purpose  of  filing  liens.'* 

§  801.  Same.  Contract  as  evidence  with  reference  to 
time  of  performance  of  labor.  Where  the  contract  is  not 
restricted  in  application  to  the  labor  performed  after  it 
was  signed,  the  actual  time  of  signing  is  immaterial ;  and  it 
seems  to  be  conclusive  evidence  that  the  labor  mentioned  in 
the  contract  performed  after  its  date  was  done  subject  to 
its  terms.'^^ 

§  802.  Inadmissibility  of  indefinite  contract.  Where  the 
complaint  avers  that  the  contract  was  for  grading  the 
south  half  of  Chestnut  Street,  and  the  contract  offered  in 
evidence  was  between  the  contractor  and  certain  owners 
of  lots,  "  fronting  on  Chestnut  —  %  street,"  and  the  con- 
tractor was  to  furnish  all  the  materials  and  perform  the 
work  of  constructing,  "  in  front  of  the  property  here  repre- 
sented," the  contract  is  too  uncertain  and  indefinite  as  to 
the  work  to  be  done  to  be  entitled  to  be  admitted  in  evi- 
dence.^" 

§  803.  Parol  evidence  in  aid  of  false  reference.  A  false 
reference,  in  a  contract,  to  the  plans  and  specifications,  as 
being  "  hereto  annexed,"  cannot  be  helped  out  by  oral 
evidence ;  ®^  for,  in  such  case,  to  permit  the  parties  to  prove 

\Va.sliington.  Oral  modification  of  contract  with  board  of  county 
commissioners,  not  entered  in  minutes,  admissible:  See  Long-  v.  Pierce 
County,    ■22   Wash.   330.   Gl    Pac.   Rep.    142.    146. 

Ii)vi<leuce  uf  ulinniloiiiiient  uf  iiuxlilicaiion.s;  not  excluded  for  lack 
of  consideration:  See  l>ong-  v.  Pierce  County.  22  Wash.  330,  61  Pac. 
Rep.   142,  147. 

"  See  §§  792  et  seq.,  and  §§  315  et  seq.,  ante. 

"  Skym  V.  Weske  Consol.  Co.   (Cal.,  Dec.  18,  1896),  47  Pac.  Rep.  116. 

1^  Rauer  v.  Fay,  110  Cal.  361,  365,  42  Pac.  Rep.  902;  Rauer  v.  Welsh 
(Cal.,   Dec.   10,   1895),  42  Pac.  Rep.   904. 

See  "Contract,"  §208,  ante. 

"  Worden  v.  Hammond,  37  Cal.  61,  64. 

See  "  Contract,"  §  208,  ante. 


§§804,805  mechanics'  liexs.  692 

that  plans  and  specifications  which  did  not  correspond  ^Yith 
the  reference  are  the  plans  and  specifications  referred  to 
is  to  make  a  different  contract,  or,  at  least,  to  open  the  door 
to  doing  so ;  and  such  evidence  is  objectionable,  even  though 
it  were  conclusively  shown  that  the  specifications  were  the 
ones  referred  to,  it  being  a  question  of  the  making  of  the 
contract,  and  not  of  its  interpretation,  as  in  the  case  of 
latent  ambiguities.^- 

Signed  specifications.  Where  the  statutory  original  con- 
tract refers  to  specifications  which  are  signed,  if  such 
reference  is  false  it  cannot  be  aided  by  parol  evidence,  and 
specifications  which  are  not  signed  cannot  be  admitted  in 
evidence.*^ 

§  804.  Parol  evidence  not  admissible-  for  construction  of 
contract.  And  parol  evidence  is  inadmissible  to  show  that 
a  payment  under  a  contract  is  a  condition  precedent,  and 
that  a  failure  to  make  such  payment  was  a  prevention  of 
performance  of  the  contract;  and,  although  both  parties 
may  know,  at  the  time  of  making  the  contract,  that  the  con- 
tractors relied,  and  were  compelled  by  their  pecuniary  re- 
sources to  rely,  upon  the  payment  by  the  defendant  of  the 
instalments  as  they  became  due,  yet  such  evidence  is  inad- 
missible to  show"  prevention  of  performance  of  the  contract 
to  do  certain  work  for  which  the  defendants  were  to  make 
payments  in  instalments.^* 

§  805.  Same.  Rule  not  applicable  to  mere  memorandum. 
The  rule  prohibiting  the  introduction  of  parol  evidience  for 
the  purpose  of  cutting  down  or  adding  to  the  terms  of  a 

8*  W^est  Coast  L.  Co.  v.  Knapp,   122   Cal.   79,  54  Pac.  Rep.   533. 

See    §§  208,    292,    ante. 

*3  DonneHy  v.  Adams,   115  Cal.   129,   131,  46  Pac.  Rep.   916. 

See  §  208,  ante. 

AVaMliington.  That  specifications  of  contract  were  drafted  by  con- 
tractor, held  immaterial,  in  the  absence  of  fraud,  or  under  special  cir- 
cumstances, if  the  language  is  plain  and  unambiguous:  See  Novelty 
M.  Co.  V.  Heinzerling,  39  Wash.  244,  81  Pac.  Rep.   742. 

^  Cox  V.  McLaughlin,  6S  Cal.  196,  205. 

See  "  Performance,"  §§  334  et  seq.,  ante.  ■ 

AVashingtun.  The  written  contract  is  the  highest  evidence  of  its 
terms:  Megrath  v.  Gilmore,  10  Wash.  339,  39  Pac.  Rep.  131. 


693  EviDExcB.  §§  806, 807 

written  contract  does  not  apply  to  a  writing  which  shows  on 
is  face  that  it  is  an  informal  memorandum,  and  which  does 
not  show  who  was  to  do  the  work  or  who  was  to  pay  for  it, 
nor  define  the  mntual  obligations  of  the  parties,  nor  purport 
to  bind  any  one ;  and  it  will  be  considered  in  connection  with 
the  oral  negotiations  which  preceded  it.  In  order  that  the 
rule  may  have  any  application,  the  writing  must  be  one 
Avhich,  by  legal  construction,  shows  upon  its  face  that 
it  was  intended  to  express  the  whole  contract  between  the 
parties. ^^ 

§  806.  Same.  Performance  of  contract.  After  the 
plaintiff  has  testified  fully  in  relation  to  the  terms  of  the 
contract  for  construction,  sued  upon,  as  he  claims  them  to 
be,  and  as  to  the  precise  work  he  had  agreed  to  do,  and  the 
kind  of  material  wliich  he  was  to  use,  it  is  competent  for  him 
to  state  whether,  in  point  of  fact,  the  work  had  been  done, 
and  such  quantity  of  materials  used  according  to  the 
contract;  since  the  questions  did  not  call  for  the  opinion 
of  the  witness,  within  the  meaning  of  the  law  excluding 
the  opinions  of  witnesses,  but  for  facts  within  his  knowl- 
edge.®^ 

i$  807.  Void  original  contract  admissible  for  what  pur- 
pose. In  conformity  with  the  rule  laid  down  in  the  last 
preceding  section,  a  void  original  contract  is  admissible  ia 
an  action  on  the  implied  contract  by  the  original  contractor, 

"  Kreuzberger  v.  Wingfield,  96  Cal.  251,  255,  31  Pac.  Rep.  109. 

InMtriinieut  not  nlKt^viuiu;  on  its  face  that  it  was  intended  to  express 
the  whole  contract  between  the  parties,  the  rule  excluding  the  parol 
evidence  does  not  apply:  See  Kreuzberger  v.  Wingfield,  supra;  Harrison 
V.  McCormick,  89  Cal.  327,  26  Pac.  Rep.  830,  23  Am.  St.  Rep.  469;  Naum- 
berg  V.  Young,  44  N.  J.  L.  (15  Vr.)  338;  Briggs  v.  Hilton,  99  N.  Y.  517, 
3  N.  E.  itep.  51,  52  Am.  Rep.  63. 

AVaMliinKtou.  See  Megrath  v.  Gilmore,  10  Wash.  339,  39  Pac.  Rep. 
131. 

""  Kreuzberger  v.  WMngfield,  96  Cal.  251,  255,  31  Pac.  Rep.  109. 

Oregon.  Contract  not  requiring  a  written  demand  for  additional 
time  of  performance,  evidence  that  such  demand  was  not  made  is  im- 
material, wlien  weighed  by  acts  of  architect:  See  Vanderhoof  v.  Shell, 
42  Oreg.  tuS.  72  Pac.  Rep.  126,  131. 

Washington.  See  Megrath  v.  Gilmore,  10  W'ash.  339,  39  Pac.  Rep. 
131. 


§§  808. 809  mechanics'  liexs.  694 

against  the  owner  in  personam,  to  show  that  the  work  had 
not  been  done  in  accordance  with  the  express  contract.®^ 

§  808.  Same.  Invalidity,  how  shown.  A  subclaimant 
may  show  the  invalidity  of  the  original  contract  in  evi- 
dence, without  an  allegation  of  its  invalidity,  in  an  action 
to  foreclose  a  lien  for  the  value  of  the  materials  furnished 
at  the  special  instance  and  request  of  the  owner  of  the 
building.*^ 

§  809.  Malperformance  of  work.  If  the  plaintiff,  in  an 
action  to  foreclose  his  lien,  introduces  evidence  to  prove  that 
the  work  upon  w^iich  the  lien  is  based  was  performed  in  a 
good  and  workmanlike  manner,  the  defendant  has  a  right  to 
disprove  that  fact,  and  to  show  that  it  was  not  so  done, 
even  if  there  be  no  issue  as  to  whether  the  work  was  done 
in  an  improper  manner.^^ 

The  evidence  of  carpenters  and  architects,  to  the  effect 
that,  as  far  as  the  work  had  progressed  at  the  time  the 
contractor  abandoned  the  building,  it  was  a  fair  average 
job  for  that  class  of  building,  does  not  support  an  issue  as  to 
whether  the  contractor  furnished  the  kind  and  quality  of 
materials  required  by  the  contract,  or  whether  such  a  breach 
of  the  contract  was  a  substantial  one.®" 


"  Laidlaw  v.  Marye,  133  Cal.  170,  176,  65  Pac.  Rep.  391,  overruling 
Rebman  v.  San  Gabriel  V.  L.  &  W.  Co.,  95  Cal.  390,  30  Pac.  Rep.  564. 

See  discussion,  §§  319  et  seq.,  ante. 

*s  Yancy  v.  Morton,  94  Cal.  558,  560,   29  Pac.  Rep.  1111. 

See  "Pleading,"  §§  689  et  seq.,  and  §§  319  et  seq.,  ante. 

s»  Hagman  v.  Williams,  88  Cal.  146,  151,  25  Pac.  Rep.  1111  (in  this 
case  there  was  an  issue  as  to  the  performance  of  the  contract,  but 
the  opinion  does  not  clearly  allude  to  it);  Barilari  v.  Ferrea,  59  Cal.  1, 
4  (testimony  as  to  character  of  material  stricken  out,  on  the  ground 
that  witness  was  not  an  expert,  but  afterwards  the  same  testimony 
was  introduced   on   cross-examination;   held,   immaterial   error). 

Montana.  Custom  as  to  including  "waste"  as  part  of  material: 
See  Marsh  v.  Morgan.   18  Mont.   19,   44  Pac.  Rep.  85. 

Testimony  of  contractor,  in  rebuttal,  with  reference  to  non-payment 
of  subcontractor  for  an  alleged  defective  floor  until  architect  accepted 
the  same,  admissible  to  affect  weight  of  architect's  testimony  that  the 
floor  was  defective:  Wyman  v.  Hooker,  2  Cal.  App.  36,  41,  83  Pac.  Rep. 
79. 

»»  Golden  Gate  L.  Co.  v.  Sahrbacher,  105  Cal.  114,  117,  38  Pac.  Rep. 
635. 


695  EVIDENCE,  §§  810, 811 

§  810.  Liquidated  damages.  A  clause  in  a  contractor's 
bond,  that  if  the  building  was  not  completed  by  a  certain 
day,  the  bondsmen  should  pay  a  fixed  sum  for  each  day's 
delay,  as  liquidated  damages,  does  not  alone  justify  a 
recovery  by  the  owner  of  such  stipulated  sum,  when  there  is 
no  evidence  that,  from  the  nature  of  the  case,  it  was  impracti- 
cable or  extremely  difficult  to  fix  the  actual  damage  that 
would  result  from  the  non-completion  of  the  building  by 
such  date,  w^lien  the  contractor  fails  to  complete  same  within 
such  time.^^ 

§  811.  Damages.  Circumstances  surrounding  execution 
of  contract.  Defendant  in  default.  Where  it  appears  that 
a  breach  of  the  contract  has  been  made  by  the  defendant, 
evidence  as  to  whether  the  plaintiff  was  informed  that  it 
was  important  that  the  work  should  be  done  within  the 
time  specified  in  the  contract,  or  whether  the  work  done  "  is  " 
of  any  present  benefit  to  the  defendant,  or  whether  the  latter 
has  sustained  any  loss  from  the  fact  that  it  was  not  com- 
pleted within  the  time  specified,  may  be  excluded  without 
material  error.^^ 

»»  Patent  B.  Co.  v.  Moore,  75  Cal.  205,  209,  16  Pac.  Rep.  890. 

See  '•  Liquidated  Damages,"  §§  237,   238,  ante. 

Cost  of  uew  staircase  not  measure  of  danuif^e  for  breach  of  con- 
tract, when  staircase  built  was  merely  defective,  and  could  be  rem- 
edied at  moderate  cost;  and  error  to  admit  evidence  as  to  such  cost: 
See  Carpenter  v.  Ibbetson,  1  Cal.  App.  272.  274,  81  Pac.  Rep.  1114. 

«-  San  Francisco  B.  Co.  v.  Dumbarton  L.  &  I.  Co.,  119  Cal.  272,  276, 
51  Pac.  Rep.  335. 

Kvidence  of  circumstances  surrounding  execution  of  contract  for 
purpose  of  estimatinf,^  damages:  See  Hale  v.  Milliken  (Cal.  App.,  May 
31,   liiUT).  90  Pac.  Hep.  36.^.  368. 

Evidence  of  nature  of  services  admissible  in  action  for  damages  for 
breach  of  contract;  services  in  oljlaining  materials  and  labor  of  super- 
vising work:  See  Bryant  v.  Broadwell,  140  Cal.  490,  495,  74  I'ac.  Kep.  33. 

iVature  of  concrete-work  unconnected  witii  cause  of  action,  after 
acceptance  by  superintendent  of  streets:  See  Thomason  v.  Richards, 
135  Cal.  XX,  67  Pac.  Rep.  1056. 

Idaho.  Evidence  of  circumstances  surrounding  execution  of  con- 
tract; prospective  profits:  See  Harris  v.  Faris-Kesl  C.  Co.  (Idaho, 
April  4,   1907),  89  Pac.  Rep.  760. 

Oregon.  Opinion  of  plaintiff  as  to  amount  of  damage  for  failure 
to  deliver  materials,  inadmissible:  See  United  States  v.  McCann,  40 
Oreg.    13.   G6   Pac.   Hep.   274. 

Kvidence  of  dilliculties  and  cost  of  work:  See  Aldrich  V.  Columbia 
S.  H.  Co.,  39  Oreg.  263,  64  Pac.  Rep.  455. 


§§  812-815  MECUxVNICS'    LIENS.  696 

§  812.  Presumption  of  knowledge  by  subclaimants  of 
valid  contract.  Subclaimants  are  conclusively  presumed  to 
have  knowledge  of  the  existence  of  a  valid  contract  and  its 
terms,  in  the  absence  of  fraud  or  misrepresentation.'-*^  The 
subject  of  the  effect  of  the  validity  of  the  contract  as  notice 
has  been  fully  considered  in  another  place,  to  which  reference 
is  made  in  the  note.'-** 

§  813.  Evidence  of  benefit  conferred.  Evidence  that  cer- 
tain work  and  materials  furnished,  as  a  gas  plant,  added 
to  the  value  of  the  plant,  or  conferred  a  benefit  on  the  owner 
thereof,  is  admissible  in  a  suit  on  the  implied  contract ;  but 
is  inadmissible  in  a  suit  on  the  express  contract,  whether 
the  original  contract  is  valid  or  void.^^ 

§  814.  Acceptance  of  performance.  It  is  sufficient  for 
the  plaintiff  to  show  full  performance  of  the  express 
contract  on  his  part,  and  he  is  not  required  to  prove,  in 
addition,  that  the  work  was  accepted  by  the  defendant, 
although  such  acceptance  is  alleged  in  the  complaint."'' 

§  815.  Evidence  of  liability  in  case  of  failure  to  perform, 
or  abandonment.  When  the  contractor  fails  to  perform  his 
contract  in  full,  or  abandons  the  same  before  completion, 
evidence  must  be  received,  in  accordance  with  section 
twelve  hundred,'*^  tending  to  show  the  extent  of  the  owner's 
liability,  measured  by  the  rule  laid  down  in  that  section. 
Under  such  circumstances,  therefore,  the  court  may  admit 

AVashington.  Evidence  surrounding  execution  of  contract:  See 
Anderson  v.  Harper,  30  Wash.  378,  70  Pac.  Rep.  965  (difficulties  and 
cost  of  work). 

Deinauds  made  by  contractor,  wliich,  under  the  contract,  were  to 
have  been  submitted  to  arbitration,  not  admissible  in  action  by 
owner  against  contractor  for  payment  of  liens  and  cost  of  completing 
structure:  Main  I.  Co.  v.  Olsen  (Wash.,  Sept.  28,  1906),  86  Pac.  Rep. 
1112. 

93  Henley  v.  Wadsworth,  38  Cal.  356,  361. 

«*  See  §§  315  et  seq.,  ante. 

»=  Sims  V.  Petaluma  G.  L.  Co.,  131  Cal.  656,  661,  63  Pac.  Rep.  1011, 
reversing,  on  this  point,  s.  c.  62  Pac.  Rep.  300.  See  Bradbury  v.  Mc- 
Henry,   125  Cal.  xix,  57  Pac.  Rep.   999. 

»«  Gilliam  v.  Brown,  126  Cal.  160,  162,  58  Pac.  Rep.  466,  s.  c.  116  Cal. 
454,  48  Pac.  Rep.  486. 

»'  Kerr's  Cje.  Code  Civ.  Proc,  §  1200. 


697  EVIDENCE.  §§  816, 817 

evidence  of  the  value  of  the  work  clone  and  materials 
furnished  by  the  contractor,  including  material  upon  the 
ground  not  used,  estimated  by  the  standard  of  the  whole 
contract  price,  and  what  would  be  the  reasonable  cost  of 
completing  the  building  according  to  the  plans  and  specifi- 
cations.*"* 

§  816.  Estoppel  as  evidence.""  General  rule.  Where  no 
opportunity  to  plead  an  estoppel  by  deed  or  matter  of  record 
is  given,  it  is  conclusive  evidence;  and  if  a  record  that  has 
not  been  pleaded  is  offered  in  evidence  as  an  estoppel, 
and  no  objection  is  made,  at  the  time,  that  the  record  has 
not  been  specially  pleaded,  the  objection  is  deemed 
waived. ^"^ 

§  817.  Same.  Judgment.  Judgments  are  evidence  in 
actions  concerning  the  same  matters  for  and  against  the 
parties  thereto,  as  well  as  their  privies  in  estate.  But  where 
an  answer  fails  to  plead  another  action  pending,  previously 
commenced  by  the  plaintiff's  subcontractor  against  an  agent 
of  the  defendant  to  recover  for  the  work,  the  judgment  in 
the  action  against  such  agent  cannot  be  an  estoppel  against 
the  plaintiff,  who  sues  for  the  same  work,  if  he  was  not 
made  a  party  to  such  action,  when,  in  the  subsequent  action, 
the  court  makes  a  finding  that  the  work  was  done  by  plain- 
tiff and  accepted  by  defendant. ^"^  And  so  where  a  person 
obtains  a  judgment  against  the  owner  of  certain  property, 
and    obtained    a    sheriff's    deed    by    sale    of    the    property 

"s  MacDonald  v.  Hayes,  ]32  Cal.  490,  495,  64  Pac.  Rep.  850. 

\%'a»ihlngrton.  AdmissUiility  of  new  contract  of  surety  for  com- 
pletion of  building  abandoned  by  contractor:  See  Brodek  v.  Farnum, 
11  Wash.  565,  40  Pac.  Rep.  189.     Compare  Savage  v.  Glenn,  10  Oreg.  440. 

»»  See  "Sxtent  of  Lien,"  §§469  et  seq.,  ante;  "Certificates,"  §§239 
et  seq.,  §  291,  and  §§  672  et  seq.,  ante. 

AVaNliiiiKtun.  As  to  estoppel  for  delay  in  bringing  action:  See 
McDonald  v.  Lewis,  18  W'ash.  300,  51  Pac.  Rep.  387. 

"""  Griffith  V.  Happersberger,  86  Cal.  605,  612,  25  Pac.  Rep.  137,  487. 

VVasliiuKton.  See  De  Mattos  v.  Jordan,  15  Wash.  378,  391,  46  Pac. 
Rep.  402. 

E^stopitel  as  to  oliaraoter  of  material  as  per.sonalty  upon  judgments 
foreclosing  lien  and  enjoining  sale  of  same  as  personalty:  See  Potvin 
V.  Denny  H.  Co..   37  Wash.  323.  79  Pac.  Rep.   940. 

"»  Griffith   V.  Happersberger,   86  Cal.  605,  612,  25  Pac.  Rep.   137,   487. 

See  "  Parties,"  §§  662  et  seq.,  ante. 


§  8]  8  mechanics'  liens.  698 

under  such  judgment,  and  thereafter  a  lien  claimant  begins 
an  action  to  enforce  his  lien  against  the  property,  the  claim 
of  lien  having  been  recorded  before  such  judgment  had  been 
docketed,  and  such  judgment  creditor  was  not  joined  as  a 
party  defendant,  and  the  lien  claimant  became  the  pur- 
chaser under  the  judgment  foreclosing  his  lien,  and  the 
owner  thereafter  purchased  of  the  judgment  creditor  the 
title  which  the  latter  had  obtained  under  his  sheriff's  deed, 
where  the  lien  claimant  brought  an  action  against  the  owner 
to  recover  possession,  the  owner  was  not  estopped  by  the  lien 
claimant's  judgment  from  setting  up  the  new  title  which 
he  had  acquired  from  such  judgment  creditor."-  But  where 
the  complaint  alleges  the  execution  of  a  mortgage  by  a  cor- 
poration, and  seeks  its  foreclosure,  which  is  decreed,  the 
purchaser  of  the  mortgaged  property  at  sheriff's  sale,  dur- 
ing the  pendency  of  the  first  action,  under  a  judgment 
foreclosing  a  lien  younger  than  the  lis  pendens  filed  in  the 
first  action,  is  estopped  from  urging  that  the  mortgage  was 
not  the  act  of  the  corporation."^ 

§  818.  Same.  Owner  estopped.  The  owner  of  the  prop- 
erty is  estopped  from  making  a  defense  based  on  the  ille- 
gality of  the  formation  of  a  copartnership  by  several  corpo- 
rations, which  sold  and  delivered  materials  therefor,  where 
the  action  to  foreclose  the  lien  for  such  material  is  brought 
by  the  assignee  of  the  partnership;  for,  when  one  has 
contracted  with  an  alleged  corporation,  and  is  sued  for 
failure  to  perform  his  contract,  he  cannot  be  heard  to  say 
that  the  corporation  has  no  existence,  and  for  that  reason 
no  contract  was  made.^°* 

"2  Flandreau  v.  Downey,  23  Cal.  354,  359. 

"3  Horn  V.  Jones,   28  Cal.  194,  204   (1855). 

See  §  818,  post. 

As  to  effect  of  lis  pendens  and  rights  of  purchasers  pendente  lite, 
see  Kerr's  Cyc.  Code  Civ.  Proe.,  §  409.  and  note. 

i»<  Yancy  v.  Morton,  94  Cal.   558,   560,   29  Pac.  Rep.   1111. 

See  §  817,  ante.  See  Camp  v.  Land,  122  Cal.  167,  169,  54  Pac.  Rep. 
839;  Fresno  C.  &  I.  Co.  v.  Warner,  72  Cal.  379,  383,  14  Pac.  Rep.  37. 

Distinguished  in  Frazier  v.  Murphy,  133  Cal.  91,  96,  65  Pac.  Rep.  326, 
as  to  presenting  of  claim  for  probate,  Where  individual  conducted 
business  under  firm  name. 


t 


699  EVIDENCE.  §§  819-821 

§  819.     Same.     Owner  estopped  by  acts  of  reputed  owner. 

The  owner  of  property  may,  by  his  acts  and  conduct,  be 
estopped  from  questioning  the  acts  of  a  reputed  owner. ^""^ 
This  matter  has  already  been  considered  at  some  length,  and 
the  distinction  between  equitable  estoppel  and  the  peculiar 
statutory  estoppel  frequently  found  in  mechanic's-lien  laws 
pointed  out.^°" 

§  820.  Same.  Surety  not  estopped  to  foreclose  lien.  The 
fact  that  a  material-man  was  a  surety  on  the  l)oud  that  the 
contractor  would  not  impose  any  liens  on  the  building  does 
not  estop  him  from  setting  up  a  lien  on  the  building,"'  what- 
ever effect  the  execution  of  such  bond  may  have  as  a  waiver 
or  as  a  basis  for  set-off  and  counterclaim.  This  subject 
has  already  been  considered  in  another  place ."^ 

§  821.  Same.  Estoppel  of  contractors  on  bond.  Even 
where  the  contract  is  void,  the  act  of  contractors  in  giving 
a  bond  as  an  independent  security,  and  thereby  inducing 
the  owner  of  the  building  to  make  full  payment  of  the  con- 
tract price  to  them,  estops  the  contractors  on  the  bond  from 

Colorado.  As  to  owner's  interest  bound  by  estoppel,  see  Davidson 
V.  Jenning.s,  27  Colo.  187,  60  Pac.  Rep.  354,  83  Am.  St.  Rep.  49,  48 
L.  R.  A.   340. 

Ha>vsiii.  Estoppel  as  to  sale  of  material:  See  Allen  v.  Redward,  10 
Hawn.   151,   158. 

Washington.  In  an  action  for  grading-work,  defendant  not  es- 
topped by  acquiescence:  See  Erickson  v.  Hochbrune  (Wash.,  Aug.  27, 
1907),  91  Pac.  Rep.  485. 

"=  Santa  Cruz  R.  P.  Co.  v.  Lyons,  117  Cal.  212,  213,  48  Pac.  Rep.  1097, 
59   Am.   St.   Rep.    174. 

See  "Extent  of  Lien,"  §§  438  et  seq.,  ante;  "Estoppel,"  §§  469  et  seq., 
ante. 

"«  See  §§  469  et  seq.,  ante. 

AIn.ska.  Owner  permitting  improvements:  See  Chambers  v.  Han- 
num,  1   Alas.  468. 

AVaMliin;;ton.  Defendant  not  estopped  to  deny  grading  was  done 
with  hi.s  acquiescence:  See  Erickson  v.  Hochbrune  (Wasli.,  Aug.  27, 
1907),  91  Pac.  Rep.  485. 

"'  Schallert-Ganahl  L.  Co.  v.  Neal,  90  Cal.  213,  215,  sub  nom.  Stovell 
V.  Neal,  27  Pac.  Rep.  192;  Blyth  v.  Torre  (Cal.,  Dec.  4,  1894),  3S  Pac. 
Rep.  639.  See  Patent  B.  Co.  v.  Moore,  75  Cal.  205,  207,  16  Pac.  Rep. 
890;  Stimson  M.  Co.  v.  Riley  (Cal.,  Dec.  20,  1895),  42  Pac.  Rep.  1072. 

See  "  Sureties,"  §ii  605  et  seq.,  ante. 

WaMliini^ton.  Estoppel  of  owner  to  deny  rescission  of  contract,  so 
far  as  surety  is  concerned:  See  Gottstein  v.  Seattle  L.  &  C.  Co.,  7 
Wash.  424,  35  Pac.  Rep.  133. 

i"*  See  §§  619,  620,  ante. 


§§822,823  mechanics'  LIENS.  700 

disputing  the  truth  of  a  recital  of  the  bond  as  to  the  contract, 
and  from  denying  their  liability  upon  it  for  liens  which  they 
failed  to  discharge,  and  which  the  owner  was  compelled  to 
pay.^°» 

§  822.  Forfeiture  and  fraud.""  The  provisions  of  section 
twelve  hundred  and  two/"  that  any  person  who  shall  wil- 
fully give  a  false  notice  of  his  claim  to  the  owner  under 
the  provisions  of  section  eleven  hundred  and  eighty-four,"- 
and  any  person  w^ho  shall  wilfully  include  in  his  claim  filed 
under  section  eleven  hundred  and  eighty-seven,^^^  work  not 
performed  on  or  materials  not  furnished  for  the  property 
described  in  the  claim,  shall  also  forfeit  his  lien,  are  to  the 
effect  that  the  claimant  shall  forfeit  his  lien  in  toto  for  a 
violation  of  such  provisions,  and  are  penal  in  character,  and 
must  not  only  be  strictly  construed,  but  the  evidence  under 
which  they  are  invoked  should  be  clear  and  convincing  that 
the  violation  was  wilful  and  intentional."* 

§  823.  Same.  Rescission  as  evidence  of  fraud.  Where 
persons  were  given  a  right  to  rescind  an  arrangement  made 
to  extend  a  lien,  such  extension  having  been  made  under  a 
misapprehension  as  to  the  applicability  of  the  law  allowing 

'»»  Kiessig  v.  Allspaugh,  91  Cal.  234,  238,  27  Pac.  Rep.  662,  13  L.  R.  A. 
418. 

See  "Sureties,"   §§605  et  seq.,  ante. 

\VIiere  the  original  contractor  alleges  or  admits  tlie  subclaiinant'si 
riglit  to  the  amount  due  from  the  owner,  the  contractor  is  afterwards 
unable  to  recover  from  owner:  See  Union  L.  Co.  v.  Simon  (Cal.  App., 
March   13,  190  \  and  Cal.  Sup.),  89  Pac.  Rep.  1077,  1080,  1081. 

Purchaser  of  property  of  estate  as-suniing  debt  created  by  contract 
with  executor,  not  e-stopped  to  file  claim  of  lien:  See  San  Francisco  P. 
Co.  V.  Fairfield,  134  Cal.  220,  223,  66  Pac.  Rep.  255. 

""  See,  g-enerally,  "Forfeiture  of  Lien,"  §§  627  et  seq.,  ante;  "Fraud 
in  Contract,"  §  207,  ante. 

Arizona.  In  the  absence  of  fraud  or  bad  faith,  evidence  to  segre- 
gate lienable  items  from  those  not  lienable:  See  Wolfley  v.  Hughes 
(Ariz.,  March  30,  1903),  71  Pac.  Rep.  951. 

"1  Kerr's   Cyc.   Code   Civ.   Proc,   §  1202. 

112  Kerr's   Cyc.   Code   Civ.   Proc,   §  1184. 

Hi   Kerr's   Cyc.   Code   Civ.   Proc,   §  1187. 

"*  Schallert-Ganahl  L.  Co.  v.  Neal,  91  Cal.  362,  365,  sub  nom.  Stovell 
V.  Neal,  27  Pac.  Rep.  192.  See  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  106 
Cal.  224,  235,  39  Pac.  Rep.  758. 

See  "  Waiver  and  Forfeiture,"  §§  627  et  seq.,  ante;  "  Construction," 
§§  26,  227,  ante. 


701  EVIDENCE.  §§824,825 

the  same,  the  debt  being  legal  and  just,  and  the  plaintiff 
having  acquired  no  rights  which  it  would  be  inequitable  to 
disturb,  it  was  held  that  such  rescission  was  no  evidence  of 
fraud.^^^ 

§  824.  Same.  Fraudulent  representations.  Where  suit 
to  foreclose  a  mechanic's  lien  is  brought,  and  defendant 
denied  the  performance  of  the  contract  sued  on,  and  sets 
up  another  contract  for  a  certain  sum,  which  included  extra 
work  sued  for  by  plaintiff  upon  a  quantum  meruit  count 
for  a  balance  due,  when  defendant  introduces  such  contract 
in  evidence,  plaintiff  may  show  in  rebuttal  that  he  signed  it 
under  representations  made  by  defendant,  and  never  in- 
tended to  sign  that  contract,  but  supposed  he  was  signing 
one  previously  drawn  up  in  lead-pencil,  which  is  not  the  one 
sued  upon.^^® 

§  825.  Use  of  materials  in  building.'^^  It  has  already 
been  seen  that  the  evidence  must  show  that  the  materials 
were  used  in  the  building ;  ^^^ 


"'  Gamble  v.  Voll,  15  Cal.  508,  510. 

See  §§  326  et  seq.,  ante. 

"«  Cumming-s  v.  Ross,  90  Cal.  68,  71,  27  Pac.  Rep.  62. 

^"  See  S§  87  et  seq.,  ante. 

Colorado.  Secondary  evidence  of  assignment  of  claim  for  labor: 
See  Everett  v.  Hart,  20  Colo.  App.  93,  77  Pac.  Rep.  254. 

Utah.  Evidence  as  to  dates  when  first  and  last  materials  were 
furnished  was  admitted:  Morrison  v.  Inter-Mountain  S.  Co.,  14  Utah 
201,  46  Pac.  Rep.   1104. 

"s  Houghton  v.  Blake,  5  Cal.  240,   241. 

See  ■■  Materials,"  §§  87  et  seq.,  ante. 

Colorado.  Evidence  that  materials  were  to  be  used  in  building 
required:  Tabor-Pierce  L.  Co.  v.  International  T.  Co.,  19  Colo.  App.  108. 
75   Pac.   Rep.    150. 

Evidence  a.s  to  quality  of  material  fiirni.slied  with  reference  to 
sample:  See  San  Miguel  Consol.  G.  M.  Co.  v.  Stubbs  (Colo.,  April  1, 
1907),  90  Pac.  Rep.  842. 

Admission  by  iiiireliaser  of  use  of  material  in  structure  prima  facie 
evidence:  .See  Joralmon  v.  McPliee.  31  Colo.  26,  71  Pac.  Rep.  419. 

Hawaii.  Proof  that  materials  were  ordered  for  a  building,  and 
furnislied  therefor  and  delivered  thereat,  prima  facie  proof  that  they 
were  used  in  the  building:  Allen  v.  Redward,  10  Hawn.  151,  158. 

i'resiimption  that  materials  furnished  to  lie  used  'were  used  In 
iMiildiii;^';  and  proof  that  a  portion  only  were  so  used  does  not,  as  a 
matter  of  law.  destroy  the  presumption  as  to  the  remainder:  Allen  v. 
Lincoln,   12  Hawn.  356. 


§  826  mechanics'  liens.  702 

are  sold  under  a  written  contract  which  is  silent  as  to  the 
use  or  purpose  for  which  such  materials  are  intended  to  be 
put,  parol  evidence  may  be  admitted  to  show  such  purpose, 
in  order  to  enforce  a  lien  therefor;  since  such  evidence  does 
not  contradict  nor  add  any  new  term  to  the  written  con- 
tract.i^» 

§  826,  Money  advanced.  Evidence  as  to  money  advanced 
by  assignee  of  subcontractor's  interest  in  last  payment,  and 
used  by  him  for  work  done   under  the   subcontract,   with 

Oklahoma.  As  to  presumption  that  all  material  was  used  in  build- 
ing after  delivery  of  same,  and  use  of  some  of  it,  see  Blanshard  v. 
Schwartz,   7  Okl.   23,   54   Pac.   Rep.   303. 

Oregon.  "  To  require  direct  and  positive  testimony  that,  as  to 
each  specific  article  delivered,  it  was  in  fact  used  in  the  buildings, 
would  make  the  mechanic's-lien  law  mure  of  a  burden  and  a  trap,  than 
a  blessing  and  a  help.  When  materials  are  contracted  for  use  in  a 
proposed  building,  when  they  are  delivered  in  pursuance  of  such  con- 
tract, and  when  the  building  is  in  fact  completed,  and  there  is  no 
testimony  tending  to  raise  even  a  suspicion  that  the  materials  there- 
for were  elsewhere  obtained,  or  that  those  contracted  for  were  not 
used  therein,  and  especially  when  some  of  the  materials  are  shown 
to  have  actually  entered  into  its  construction,  it  is  fair  to  conclude 
and  say  that  such  materials  did  in  fact  go  into  the  building,  and 
that  the  seller  has  a  mechanic's  lien  therefor":  Allen  v.  Elwert,  29 
Oreg.  428,  44  Pac.  Rep.  823,  48  Pac.  Rep.  54,  qnotingr  Rice  v.  Hodge,  26 
Kan.  170. 

Time-checks  given  by  the  contractor  to  the  laborer,  though  not 
conclusive  against  the  owner  of  the  structure,  "  are  declarations  of 
the  defendant's  agent  in  the  line  of  his  employment,  and  are  to  be 
considered  for  what  they  are  worth":  Forbes  v.  Willamette  Falls  E. 
Co.,   19  Oreg.  61,  23  Pac.  Rep.  670,  20  Am.  St.  Rep.  793. 

Utah.  See,  as  to  the  "  Oregon  doctrine,"  supra,  McCornick  v.  Sad- 
dler, 10  Utah  210,  37  Pac.  Rep.  332,  in  which  it  is  held  that  where  a 
building  contractor's  only  knowledge  as  to  the  amount  of  lumber 
purchased  from  a  firm,  and  which  went  into  the  construction  of  a 
building,  was  received  from  certain  bills  and  checks,  some  of  which 
had  been  lost,  but  were  correct,  and  he  was  not  present  when  all  the 
lumber  was  delivered,  and  did  not  measure  it,  nor  order  all  of  it,  his 
evidence  as  to  such  amount  is  hearsay. 

AVasbington.  Same  principle  as  to  time-checks  as  Oregon  case, 
this  note,  supra:  See  Garneau  v.  Port  Blakeley  M.  Co.,  8  Wash.  467,  36 
Pac.  Rep.  463.  Same  quotation  from  Rice  v.  Hodge,  26  Kan.  170,  as- 
Oregon  case,  this  note,  supra:  Seattle  L.  Co.  v.  Sweeney,  43  Wash.  1, 
85  Pac.  Rep.  677. 

"9  Donahue  v.  Cromartie,  21  Cal.  80,  86.  See  Neilson  v.  Iowa  E.  R. 
Co.,   51   Iowa  184,   186,   1  N.  W.  Rep.   434,   33  Am.  Rep.   124. 

Colorado.  Hearsay  evidence:  Custom  of  store  with  reference  to 
sales  and  delivery  of  goods:  See  Stidger  v.  McPhee,  15  Colo.  App.  252, 
62  Pac.  Rep.  332. 

Montana.  Evidence  as  to  date  of  first 'item  was  held  admissible  to 
show  right  to  lien  and  right  to  assign  lien:  Mahoney  v.  Butte  H.  Co., 
19  Mont.  377,  48  Pac.  Rep.  545. 


703  EVIDENCE.  §  827 

the  knowledge  of  contractor,  is  immaterial,  in  an  action  by 
such  assignee  of  the  subcontractor  against  the  contractor.^-" 

§  827.  Questions  of  fact.^-^  The  following  are  questions 
of  fact :  Payment ;  ^--  time  of  completion  of  building ;  ^-^ 
what  constitutes  a  trivial  or  trifling  imperfection ;  ^-* 
whether  the  work  done  after  a  certain  date  was  to  remedy 
a  trifling  imperfection;^-^  generally,  the  sufficiency  of  a 
description  of  property,^^®  or  sufficiency  for  identifica- 
tion ;  ^-'   the  character  of  occupanc}' ;  ^-^  whether  the  build- 

"»  Pohlman  v.  Wilcox,  146  Cal.  410,  442,  80  Pac.  Rep.  625. 

^^  Oregon.  As  to  whether  materials  affixed  are  fixtures  is  a  mixed 
question  of  law  and  fact:  Matthiesen  v.  Arata,  32  Oreg.  342,  346,  50 
Pac.  Rep.  1015,  67  Am.  St.  Rep.  535. 

>Va.shiiigtun.  Whether  architect's  decision  was  just  and  impartial, 
question  of  fact:  See  Lorjg-  v.  Pierce  County,  22  Wash.  330,  61  Pac.  Rep. 
142. 

Fixture,  question  of  fact:  See  Philadelphia  M.  &  T.  Co.  v.  Miller,  20 
Wash.  607,   56  Pac.  Rep.  382,  72  Am.  St.  Rep.  138,  44  L.  R.  A.  559. 

Neglect  of  contractor,  question  of  fact:  Novelty  M.  Co.  v.  Heinzer- 
ling.   39   Wash.   244,   81   Pac.  Rep.   742. 

i~  P,arilari  v.  Ferrea,  59  Cal.  1,  4;  Simons  v.  Webster,  108  Cal.  16,  18, 
40  Pac.  Rep.  1056. 

AVa.>«hington.  Time  at  which  work  on  building  was  completed  is  a 
question  of  fact:  See  Ellsworth  v.  Layton,  37  Wash.  340,  79  Pac.  Rep. 
947. 

So  whether  the  receiving  of  a  check  for  the  amount  of  a  disputed 
claim  was  an  acceptance  of  it  as  a  full  settlement,  although  the 
check  recites  that  it  is,  is  a  question  proper  to  be  submitted  to  the 
jury,  when  there  is  a  controversy  as  to  the  facts:  Megrath  v.  Gil- 
more,   10  Wasli.  339.  39  Pac.  Rep.  131. 

»=3  Willamette  S.  M.  Co.  v.  Kremer,  94  Cal.  205,  208,  29  Pac.  Rep.  633; 
Coss  V.  MacDonough,  111  Cal.  662,  666,  44  Pac.  Rep.  325.  See  Santa 
Monica  L.  &  M.  Co.  v.  Hege,  119  Cal.  376.  378,  51  Pac.  Rep.  555:  Schal- 
lert-Ganahl  L.  Co.  v.  Sheldon  (Cal.,  Feb.  9,  1893),  32  Pac.  Rep.  235. 

'2*  Willamette  S.  M.  Co.  v.  Kremer,  supra;  Willamette  S.  M.  Co.  v. 
Los  Angeles  College  Co.,  94  Cal.  229,  238,  29  Pac.  Rep.  629;  Coss  v. 
MacDonough,  supra;  Marble  Lime  Co.  v.  Lordsburg  H.  Co.,  96  Cal.  332, 
334,  31  Pac.  Rep.  164;  Bianchi  v.  Hughes,  124  Cal.  24,  56  Pac.  Rep.  610; 
Santa  Monica  L.  &  M.  Co.  v.  Hege,  119  Cal.  376,  378,  51  Pac.  Rep.  555 
(there  was  no  test  by  which  it  could  be  determined  that  the  building 
was  completed).  See  Schallert-Ganahl  L.  Co.  v.  Sheldon  (Cal.,  Feb. 
9,  1893),  32  Pac.  Rep.  235. 

Colorado.  Questions  of  fact:  Trifling  imperfection;  material  altera- 
tions of  contract:  Stidger  v.  McPhee,  15  Colo.  App.  252,  62  Pac.  Rep. 
332. 

^  Coss  V.  MacDonough,  111  Cal.  662,  666,  44  Pac.  Rep.  325. 

"«  Willamette  S.  M.  Co.  v.  Kremer,  94  Cal.  205,  209,  29  Pac.  Rep.  633. 

See  §  399,  ante. 

"'  Union  L.  Co.  v.  Simon  (Cal.  App.,  March  13,  1906),  89  Pac.  Rep. 
1077,  1079. 

'-■»  Willamette  S.  M.  Co.  v.  Los  Angeles  College  Co.,  94  Cal.  229,  239, 
29  Pac.  Rep.  629. 


§  828  mechanics'  liexs.  70  i 

ing  Avas  completed ;  ^-^  whether  there  was  a  continuance  of 
work  during  a  certain  period,  or  a  cessation  of  work  for 
thirty  days ;  ^^^  whether  there  was  a  substantial  performance 
of  the  contract ;  ^^^  whether  several  mining  claims  are  owned 
and  operated  as  one  mine ;  ^^-  whether  the  materials  furnished 
were  so  affixed  to  the  building  as  to  become  a  part  thereof.^^^ 

§  828.  Questions  of  law.^34  -q^^^^  whether  the  plaintiff 
has  a  lien/^^  or  has  complied  with  the  requirements  of  the 
provisions  of  the  law/^*'  or  has  filed  his  claim   within  the 

i2«  Willamette  S.  M.  Co.  v.  Los  Ang-eles  C.  Co.,  94  Cal.  229.  237.  29 
Pac.  Rep.  629;  Marble  L.  Co.  v.  Lordsburg  H.  Co.,  96  Cal.  332,  334,  31 
Pac.  Rep.  164. 

Colorado.  Or  whether  it  was  completed  within  a  reasonable  time, 
when  the  contract  does  not  specify  any  particular  time  of  comple- 
tion: "Walling  V.  Warren,   2  Colo.  434. 

"»  Marble  L.  Co.  v.  Lordsburg  H.  Co.,  96  Cal.  332,  334,  31  Pac.  Rep. 
164. 

"1  Harlan  v.  Stufflebeem,  87  Cal.  508,  512,  25  Pac.  Rep.  686:  Perry  v. 
Quackenbush,  105  Cal.  299,  306,  38  Pac.  Rep.  740;  Marble  L.  Co.  v. 
Lordsburg  H.  Co.,  96  Cal.  332,  334,  31  Pac.  Rep.  164. 

See  §§  806,  801,  ante. 

Montaua.  Whether  materials  furnished  or  labor  performed  under 
one  or  more  original  contracts,  question  of  fact:  W'estern  I.  W.  v.  Mon- 
tana P.  &  P.  Co.,  30  Mont.  550.   77  Pac.  Rep.  413.  417. 

>=2  Hamilton  v.  Delhi  M.  Co.,  118  Cal.  148,  50  Pac.  Rep.  378. 

"3  Bianchi  v.  Hughes,  124  Cal.  24,  28,  30,  56  Pac.  Rep.  610  (ice-room 
constructed  by  lessee);  Stevenson  v.  W^oodward,  3  Cal.  App.  754,  86 
Pac.  Rep.  990. 

See  '■  Questions  of  Law,"  §  828,  post. 

Montana.  Whether  materials  were  delivered  under  an  entire  con- 
tract or  under  separate  ones,  and  whether  there  was  a  running 
account  between  the  parties  under  which  the  orders  were  filled,  were 
held  to  be  questions  of  fact:  Helena  S.  H.  &  S.  Co.  v.  W'ells,  16  Mont. 
65,  40  Pac.  Rep.  78. 

W'a.shington.  So  whether  materials  are  in  good  faith  designed  to 
be  used  in  the  construction  of  a  building:  Potvin  v.  Wickersham.  15 
Wash.  646,  47  Pac.  Rep.  25;  or  that  the  contractors  were  the  "agents" 
of  the  owner:  Sautter  v.  McDonald,  12  Wash.  27,   31,   40  Pac.  Rep.   418. 

^^*  See  also  "Pleading,"  §  737,  ante. 

Oklahoma.  Building,  real  or  personal  property,  held  to  be  a  ques- 
tion of  law,  to  be  determined  from  the  facts:  Bridges  v.  Thoinas,  8 
Okl.  620,  58  Pac.  Rep.  955. 

See  §  827,  ante. 

133  Bradbury  v.  Cronise,  46  Cal.  287,  289;  Curnow  V.  Happy  Valley 
B.  G.  &  H.  Co.,  68  Cal.  262,  26G,  9  Pac.  Rep.  149. 

In.struotion  to  jury  as  to  levy  of  asses-snient  being  an  acceptance  of 
work,  question  of  law:  See  Gilliam  v.  Brown,  116  Cal.  454,  48  Pac.  Rep. 
486. 

"«  Curnow  v.  Happy  Valley  B.  G.  &  H.  Co..  supra. 

^Va.sllin^ton.  Likewise,  it  has  been  held,  whether  the  inaterials 
are  such  as  are  lienable  articles  or  of  a  kind  or  character  to  be  used 
in  the  construction  of  a  building:  Bolster  v.  Stocks,  13  Wash.  460,  43 
Pac.  Rep.  532,  534,  1099. 


705  EVIDENCE.  §§  829-831 

time  required  by  law,^"  or  has  priority  of  lien/^^  is  a  con- 
elusion  of  law.  Whether  a  bond  is  a  common-law  or  a 
statutory  bond  is  a  question  of  law,  not  for  the  witness  to 
determine;  and  whether  claimant  relied  upon  a  statutory 
bond  at  the  time  of  entering  into  the  contract  is  imma- 
terial."' 

§  829.  Value.  Valid  contract  as  evidence  thereof.  Ac- 
tion on  implied  contract.  A  valid  building  contract  is 
admissible  in  evidence  as  proof  of  the  value  of  materials 
furnished  and  services  rendered,  but  is  by  no  means  con- 
clusive on  that  point,  in  an  action  on  the  implied  contract 
after  prevention  of  performance,  and  such  evidence  is  to 
be  taken  with  the  other  evidence  in  arriving  at  such  value. '^*'' 

§  830.  Same.  Common  counts.  Where  plaintiff  has  in- 
troduced evidence  showing  the  complete  performance  of  a 
valid  contract,  and  that  the  payment  of  the  money  due 
merely  remained,  the  special  valid  contract  is  admissible  in 
evidence,  under  the  common  counts,  as  an  admission  of  the 
standard  of  value.^*^ 

§  831.  Same.  Contract  as  evidence  of  extra  work.  Ex- 
press contract.  In  an  action  to  foreclose  the  lien,  based  upon 
the  valid  contract,  it  is  conclusive  as  to  the  value  of  the 
work  done  under  it,  and  also  as  to  the  extra  work,  so  far 
as  it  fixes  the  value;  the  court  saying,  "Appellant  claims 

'"  Pierce  v.  Willis,  103  Cal.  91,  93,  36  Pac.  Rep.  1080. 

Washin^on.  Contra;  it  is  a  question  of  fact:  Johnston  v.  Har- 
rington, 5  Wash.  73,  82,  31  Pac.  Rep.  316. 

The  true  rule  seems  to  be,  that  the  time  within  wliich  the  claim 
should  be  filed  is  a  question  of  law,  but  that  the  question  whether  or 
not  the  claim  was  filed  within  that  time  is  a  question  of  fact. 

">"  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  106  Cal.  224,  236,  39  Pac.  Rep 
758. 

See  "  Answer,"  §§  738  et  seq.,  ante. 

"»  Union  S.  M.  Works  v.  Dodge,  129  Cal.  390,  397,  62  Pac.  Rep.  41. 

See  §§  281  et  seq..  and  §§  605  et  seq.,  ante. 

""  Adams  v.  Burbank,  103  Cal.  646,  650,  37  Pac.  Rep.  640.  See  Cox 
V.  McLaughlin,   54  Cal.   605,   610. 

1"  Castagnino  v.  Balletta,  82  Cal.  250,  259,  23  Pac.  Rep.  127. 

See  "Complaint,"  §§  673  et  seq.,  ante. 
Mech.  Liens  —  45 


§  832  mechanics'  liens.  706 

that  there  was  no  evidence  of  the  reasonable  value  of  the 
work  done  by  the  plaintiffs.  As  the  memorandum  of  the 
contract  between  W.  and  the  owner  is  sufficient,  the  con- 
tracts between  the  contractor  and  the  subcontractors  are 
conclusive,  both  as  to  their  principal  contracts  and  as  to 
contracts  for  extra  work,  so  far  as  they  fixed  the  value. 
Where  the  value  was  not  fixed  by  contract,  other  proof  of 
value  must  be  made."  ^*^ 

§  832.  Same.  Void  contract.  The  price  of  materials 
agreed  upon  in  a  void  statutory  original  contract  is  now  held 
to  be  prima  facie  evidence  of  their  value, "^  at  least  as  far  as 
the  owner  and  contractor  are  concerned."*  At  first  there 
was  some  uncertainty  in  the  decisions  as  to  whether  a  void 
original  contract  is  admissible  as  evidence  of  the  value  of 
the  work  done  and  materials  furnished.  In  an  action  on  a 
quantum  meruit,  by  the  original  contractor,  against  the 
owmer,  it  was  held  that  the  void  statutory  original  contract 
is  not  admissible  in  evidence.^*^  But  in  an  action  to  foreclose 
a  lien  upon  the  property  by  subclaimants,  where  the  statu- 
tory original  contract  was  void,  it  was  said :  "  To  prevent 
misapprehension,  it  may  be  added  that  if  the  memorandum 
filed  was  not  in  compliance  with  the  statute,  the  contract 
price  agreed  by  the  contractor  to  be  paid  to  the  subcon- 

1*2  Joost  V.  SuUivan,  111  Cal.  286,  296,  43  Pac.  Rep.  896. 

See  §  832,  post. 

Colorado.  See  Merriner  v.  Jeppson,  19  Colo.  App.  218,  74  Pac.  Rep. 
341. 

"3  Bringham  v.  Knox,  127  Cal.  40,  44,  59  Pac.  Rep.  198. 

1"  See  Laidlaw  v.  Marye,  133  Cal.   170,  65  Pac.  Rep.  391. 

See  §§  319  et  seq.,  ante. 

"5  Rebman  v.  San  Gabriel  V.  L.  &  W.  Co.,  95  Cal.  390,  395,  30  Pac 
564.  It  was  said  (p.  396):  "But,  even  conceding  that  the  void  con- 
tract is  merely  competent  evidence,  tending-  to  prove  the  value  of  the 
labor  and  materials,  but  not  conclusive,  its  effect  was  only  to  creafe 
a  conflict  with  other  evidence  tending  to  support  the  finding  in  ques- 
tion." 

Q,ucere:  Might  it  not  have  been  admissible  as  an  admission  of  value? 
Compare  also  Kuhlman  v.  Burns,  117  Cal.  469,  49  Pac.  Rep.  585.  See 
following  note. 

Rule  of  Rebman  v.  San  Gabriel  V.  L.  &  M.  Co.,  supra,  was  over- 
ruled by  Laidlaw  v.  Marye,  133  Cal.  170,  65  Pac.  Rep.  391  (so  far  as 
relates  to  subclaimants). 

See  §§  319  et  seq.,  ante. 


ii 


707  EviDENcia.  §  832 

tractors  is  evidence  of  value ;  but  such  evidence  may  be 
rebutted."  ^*^  Under  a  void  statutory  original  contract, 
plaintiff's  testimony  as  to  the  reasonable  value  of  certain 
work,  and  as  to  his  knowledge  of  the  charge  of  persons 
engaged  in  the  business,  for  similar  work,  is  admissible,  and 
relevant  and  material,  in  an  action  in  assumpsit.^*^  Where 
the  statutory  original  contract  is  void,  an  averment  in  the 
complaint  of  a  subclaimant  as  to  the  contract  price  for 
materials  is  prima  facie  evidence  of  their  value,  and  need 

"8  Joost  V.  SuUivan,  111  Cal.  286,  296,  43  Pac.  Rep.  896  (dictum), 
citing-  Booth  v.  Pendola,  88  Cal.  36,  41,  44,  23  Pac.  Rep.  200,  24  Pac. 
Rep.  714,  25  Pac.  Rep.  1101,  in  wiiicli  it  was  held  that  the  contract 
price  agreed  upon  between  the  contractor  and  material-man  and 
laborers  is  prima  facie  evidence  of  value  of  the  materials  furnished 
and  labor  performed,  where  the  statutory  original  contract  is  void. 
This  case  was  not  noticed  in  Willamette  S.  M.  Co.  v.  Los  Angeles  Col- 
lege Co.,  94  Cal.  229,  236,  240,  29  Pac.  Rep.  629,  a  suit  to  foreclose  a 
lien  on  the  property  by  subclaiinazits,  in  which  it  was  said:  "  It  [the 
void  statutory  original  contract]  cannot  be  the  basis  of  a  recovery 
by  the  contractor  against  the  owner,  nor  can  it  be  looked  to  for  the 
purpose  of  determining  the  amount  for  which  the  owner  is  liable,  or 
when  any  payment  is  to  be  made.  In  any  action  against  him  by  a 
laborer  or  material-man,  their  riglits  are  to  be  determined  by  other 
rules,  and  irrespective  of  any  provision  of  such  contract.  .  .  .  Ina.s- 
much  as  by  a  failure  to  file  the  contract  in  the  recorder's  office  it 
became  wholly  void,  it  was  not  available  as  a  defense  for  any  pur- 
pose, either  to  determine  the  amount  of  the  contract  price,  or  to  limit 
the  liability  of  the  appellant  [the  owner],  or  as  the  foundation  of  a 
right  to  complete  the  building  according  to  its  terms."  Also  quoted 
in  Rebman  v.  San  Gabriel  Valley  L.  &  W.  Co.,  95  Cal.  390,  30  Pac.  Rep. 
564. 

See  also  §§  319  et  seq.,  ante. 

In  Booth  V.  Pendola,  supra,  it  was  said:  "  The  contract  between  the 
owner  and  Hamilton  [the  contractor]  was  never  filed  for  record.  It 
was  void;  and,  while  it  is  doubtless  true  that  the  contract  price  agreed 
upon  between  Hamilton,  the  agent  of  the  owner,  and  the  material- 
men and  laborers,  is  prima  facie  evidence  of  the  value  of  the  materials 
furnished  and  labor  performed,  and  would  support  a  finding  of  value, 
we  think  that  an  allegation  and  a  finding  on  the  subject  are  essential 
to  support  a  judgment  in  actions  of  this  character.  .  .  .  Appellant  con- 
tends that  there  is  no  sufficient  finding  of  the  value  of  the  materials 
and  labor  furnished  by  two  of  the  lien  claimants.  But  the  court  finds 
that  they  were  employed  by  Hamilton,  the  contractor,  at  a  certain 
price;  and  as,  under  the  code,  Hamilton  was  the  agent  of  the  owner, 
we  think  that  this  was  sufficient." 

See  "Agency,"  §§  572  et  seq.,  ante. 

Colorado.  Charles  v.  Hallack  L.  &  M.  Co.,  22  Colo.  283.  43  Pac.  Rep. 
548  (the  contract  is  prima  facie  evidence  of  value  as  against  the 
owner). 

"'  Camp  v.  Behlow,  2  Cal.  App.  699,  702,  84  Pac.  Rep.  251,  not  fol- 
lo^Tint;  Kuhlman  v.  Burns,  117  Cal.  469.  49  I'ac.  Rep.  58.').  on  this  point, 
declaring  it  to  be  no  longer  the  law.  See  Laidlaw  v.  Marye,  133  Cal. 
170,  65  Pac.  Rep.  391. 


§  833  mechanics'  liens.  "^OS 

not  be  proven  at  the  trial,  when  the  allegation  is  not  specially 
demurred  to,  nor  denied  in  the  answer/*^ 

§  833.  Same.  Market  price.  Usual  price.  A  general 
rule  relating  to  value  is,  that  proof  of  the  market  price  is 
evidence  of  the  value  of  the  materials.^*^ 

Usual  price.  Where  the  claim  of  lien  states  that  the  price 
agreed  upon  was  "  the  usual  price,  and  what  said  materials 
were  reasonably  worth  at  their  place  of  business,"  it  states, 
in  legal  effect,  a  contract  that  the  materials  were  to  be 
paid  for  on  delivery  at  what  they  were  reasonably  worth, 
and  is  sufficiently  sustained  by  proof  that  the  materials 
contracted  for  were  furnished  on  orders  of  the  architects 
and  used  in  the  building,  and  were  reasonably  worth  a 
certain  sum;  and  it  is  not  necessary  to  prove  an  express 
agreement  to  pay  the  usual  price,  and  what  said  materials 
were  reasonably  worth,  at  the  claimants'  place  of  business. ^^° 

"»  Although  an  averment  of  evidence  of  the  fact,  rather  than  the 
uUlmate  fact  itself:  Bringham  v.  Knox,  127  Cal.  40,  45,  59  Pac.  Rep. 
198,  citing  Russ  L.  &  M.  Co.  v.  Garrettson,  87  Cal.  589,  25  Pac.  Rep. 
747;  Amestoy  v.  Ellectric  R.  T.  Co.,  95  Cal.  311,  30  Pac.  Rep.  550;  Mul- 
lally  V.  Townsend,  119  Cal.  47,  52,  50  Pac.  Rep.  1066. 

Followed:  Carpenter  v.  Furrey,  128  Cal.  665,  669,  61  Pac.  Rep.  369; 
Anderson  v.  Bank  of  Lassen  County,  140  Cal.  695,  699,  74  Pac.  Rep.  287. 

Objections  going  to  sntliciency  of  statement  of  facts,  and  not  to  the 
facts  themselves,  must  be  by  special  demurrer,  pointing  out  the 
defects  complained  of:  Mullally  v.  Townsend,  119  Cal.  47,  52,  50  Pac. 
iiep.  1066.  See  Himmelmann  v.  Spanagel,  39  Cal.  401,  402;  Tehama 
County  V.  Bryan,  68  Cal.  57,  59,  8  Pac.  Rep.  673;  Harnish  v.  Bramer, 
71  Cal.  155,  158,  11  Pac.  Rep.  888;  Grant  v.  Sheerin,  84  Cal.  197,  200,  23 
Pac.  Rep.  1094;  Amestoy  v.  Electric  R.  T.  Co.,  95  Cal.  311,  314,  30  Pac 
Rep.  550. 

8anie.  General  demurrer  will  not  reach  the  defect:  Tehama 
County  V.  Bryan,  68  Cal.  57,  59,  8  Pac.  Rep.  673;  Harnish  v.  Bramer, 
71  Cal.  155,  158,  11  Pac.  Rep.  888;  see  Grangers'  Business  Assoc,  v. 
Clark,  84  Cal.  201,  23  Pac.  Rep.  1081;  Grant  v.  Sheerin,  84  Cal.  197, 
200,  23  Pac.  Rep.  1094;  Ryan  v.  Jaques,  103  Cal.  280,  284,  37  Pac.  Rep. 
186;  Mullally  v.  Townsend,  119  Cal.  47,  52,  50  Pac.  Rep.  1066;  Larkin  v. 
Mullen,  128  Cal.  449,  453,  60  Pac.  Rep.  1091;  Buckman  v.  Hatch,  139 
Cal.  53,  60,  72  Pac.  Rep.  445. 

1"  Santa  Monica  L.  &  M.  Co.  v.  Hege,  119  Cal.  376,  380,  51  Pac.  Rep. 
555. 

Idaho.  Conflict  as  to  evidence  of  contract  price  under  express  con- 
tract, evidence  of  actual  cost  admissible:  See  Lewis  v.  Utah  Const. 
Co.,  10  Idaho  214,  77  Pac  Rep.  336. 

1^  Reed  v.  Norton,   90  Cal.   590,   597,   26  Pac.  Rep.   767,   27  Id.   426. 

AVashington.  Value  of  material  not  equal  to  contract,  but  shown 
approximately,  as  defense:  See  Kruegel  v.  Kitchen,  33  Wash.  214,  74 
Pac.  Rep.  373,  375. 


709  EVIDENCE.  §  831 

§  834.  Same.  Other  evidence  of  value.  The  time  reason- 
ably necessary  to  be  occupied  in  performing  the  services  is 
one  of  the  facts  and  circumstances  to  be  considered  in  de- 
termining the  value  of  the  services  of  an  architect ;  ^^^  and 
a  subsequent  agreement  to  pay  a  certain  sum  is  evidence  of 
the  reasonable  value  of  services,  where  the  contract  is  im- 
plied.^^^     The  evidence  of  experts  as  to  value  is  admissible.^^^ 

"1  Ehlers  V.  W^annack,  118  Cal.  310,  311,  50  Pac.  Rep.  433. 

J"  W^ebb  V.  Kuns   (Cal.,  July  25,  1898),  54  Pac.  Rep.  78. 

1"  Ehlers  v.  Wannack,  118  Cal.  310,  311,  50  Pac.  Rep.  433. 

Expert  evidence  as  to  the  value  of  work,  putting  together  the 
bottoms  of  caissons:  Pacific  R.  M.  Co.  v.  English,  118  Cal.  123,  130,  50 
Pac.  Rep.  383. 

Idaho.  See  American  B.  Co.  v.  Regents  of  University,  11  Idaho  163, 
81  Pac.  Rep.  604,  612. 


§  835  mechanics'  liens.  710 


CHAPTER   XXXIX. 

VARIANCES. 

§  835.  Variances.     Generally. 

§  836.  Claim  of  lien.     Pleadings.     Proof.     Generally. 

§  837.  Claim  of  lien.     Pleadings.     Material  variances. 

§  838.  Same.     Persons  contracting.     Husband  and  wife. 

§  839.  Same.     Immaterial  variances. 

§  840.  Same.     Valid,  void  contract.     Owner  purchasing  directly. 

§  841.  Same.     Description  of  property. 

§  842.  Same.     Payments. 

§  843.  Claim  of  lien  and  proof.     Generally. 

§  844.  Same.     Material  variances. 

§  845.  Same.     Time  of  payment. 

§  846.  Same.     Nature  of  labor. 

§  847.  Same.     Deducting  credits  and  offsets.     Amount  paid. 

§  848.  Same.     Immaterial  variances. 

§  849.  Same.     Person  contracting. 

§  850.  Same.     Contract.     Date  of  contract. 

§  851.  Same.     Implied  contract.     Express  contract. 

§  852.  Same.     Nature  of  work. 

§  853.  Pleading  and  proof.     Generally. 

§  854.  Same.     Material  variances.     Contract. 

§  855.  Same.    Valid,  void  contract.    Contracting  directly  with  owner 

or  agent. 

§  856.  Same.     Indefinite    contract. 

§  857.  Same.     Person  contracting. 

§  858.  Same.     Nature  of  work. 

§  859.  Same.     Fund.     Contractual  indebtedness. 

§  860.  Same.     Immaterial  variances. 

§  861.  Same.     Time  of  payment. 

§  862.  Same.     Subclaimant.     Owner's  employee. 

§  863.  Same.     Bond.     Signed  by  principals.     Unsigned. 

§  835.  Variances.^  Generally.  A  variance  between  the 
claim  of  lien  and  proof  differs  greatly  in  its  results  from 
a  variance  between  the  claim  of  lien  and  the  pleadings ;  for 

'  See,  generany,  "Claim,"  §§361  et  seq.,  ante;  especially,  "Mis- 
take and  Error,"  §§412  et  seq.,  ante,  and  "Complaint,"  §§672  et  seq., 
ante. 

See  Kerr's  Cyc.  Cede  Civ.  Proc,  Stats,  and  Amdts.   1906-07,   §  1203a. 


711  ARiANCEs.  §§  836, 837 

the  latter  may  be  amended  to  conform  to  the  evidence,  while 
the  former  may  not.  The  effect  of  error  in  the  claim  of  lien 
has  already  been  considered  at  some  length,-  and  the  effect 
of  the  new  provision  of  1907,  adding  section  twelve  hundred 
and  three  a,^  has  been  dwelt  upon  elsewhere,*  and  will  not 
be  repeated  in  this  place. 

§  836.  Claim  of  lien.  Pleadings.  Proof.  Generally.  A 
statement  in  the  claim,  which  is  not  required  to  be  made  by 
the  statute,  and  which  is  erroneous,  will  not  form  the  basis 
for  a  material  variance.^  As  a  general  rule,  where  the  vari- 
ances between  the  evidence  on  the  one  hand,  and  the  com- 
plaint and  claim  of  lien  on  the  other,  are  trifling,  and  do  not 
go  to  any  matter  of  substance,  and  could  not  have  misled 
the  opposing  party  in  kny  way,  to  their  injury,  they  are  not 
fatal." 

The  contract "  stated  in  the  claim  of  lien  must  be  the  same 
in  all  essentials  as  that  alleged  in  the  complaint.^ 

§  837.  Claim  of  lien.  Pleadings.  Material  variances.^ 
In  accordance  with  the  rule  stated  in  the  preceding  section, 
before  the  enactment  of  section  twelve  hundred  and  three  a 
in  1907,  the  following  have  been  held  to  be  material  vari- 
ances. 

Colorado.  Variance,  where  claim  sets  up  contract  with  considera- 
tion, and  complaint  without  consideration:  Harris  v.  Harris,  9  Colo. 
App.   211,   219,   47   Pac.  Rep.  841. 

As  to  variance,  claim  and  complaint,  see  Harris  v.  Harris,  IS  Colo. 
App.  34,  69  Pac.  Hep.  309. 

As  to  variance  between  claim  of  lien  and  notice  of  intention  to 
claim  lien,  Immaterial  (agreed  and  reasonable  value):  See  Chicago  L. 
Co.  V.  Newcomb,  19  Colo.  App.  265,  74  Pac.  Rep.  786,  791. 

2  §§  412  et  seq.,  ante. 

3  Kerr's  Cyc.  Code  Civ.  Proc,  Stats,  and  Amdts.  1906-07,  §  1203a. 
<  §§  412  et  seq.,  ante. 

'^  Slight  V.  Patton,  96  Cal.  384.  386,  31  Pac.  Rep.   248. 

«  Macomber   v.   Bigelow,   126   Cal.   9.   16,   58   Pac.   Rep.   312. 

'  Material  variances:  See  Boscow  v.  Patton,  136  Cal.  90,  68  Pac.  Rep. 
490,  explaining  Santa  Monica  L.  &  M.  Co.  v.  Hege,  119  Cal.  376,  51  Pac. 
Rep.  555,  and  Wilson  v.  Nugent,  125  Cal.  280,  57  Pac.  Rep.  1008. 

"  See  San  Pedro  L.  Co.  v.  West,  3  Cal.  App.  757,  86  Pac.  Rep.  993 
(contract  for  all  materials  for  building). 

»  Malone  v.  Big  Flat  G.  M.  Co.,  76  Cal.  578,  581,  18  Pac.  Rep.  772. 
But  see  Star  M.  &  L.  Co.  v.  Porter  (Cal.  App.,  Nov.  24,  1906),  88  Fac. 
Rep.    497,    499. 


§§  838, 839  mechanics'  liens.  712 

Express  and  implied  contract.  It  is  a  material  variance 
if  the  complaint  is  on  a  quantum  meruit,  and  the  contract 
stated  in  the  claim  is  for  a  fixed  price." 

Work.  Work  and  materials.  If  the  claim  is  for  work, 
and  the  complaint  is  for  work  and  materials,  it  is  a  material 
variance.^^ 

§  838.     Same.     Persons  contracting.     Husband  and  wife. 

Likewise  if  the  claim  states  that  the  contract  was  made  with 
the  wife  with  the  knowledge,  consent,  and  acquiescence  of 
the  husband,  it  not  being  his  contract,  and  the  complaint 
alleges  that  the  contract  was  made  with  the  defendants, 
husband  and  wife,  it  is  a  material  variance.^^ 

§  839.  Same.  Immaterial  variances.  The  following  have 
been  held  to  be  immaterial  variances. 

Valid,  void  contract.  Contractor  as  agent  of  owner. 
There  is  no  fatal  variance  between  the  claim  of  lien  and  the 
complaint,  where  the  claim  treats  the  original  contract  as 
valid,  and  states  that  the  contractor  purchased  the  materials 
both  as  contractor  and  as  agent  of  the  owner,  while  the 
complaint  alleged  that  the  statutory  original  contract  was 
void  for  want  of  filing,  and  that  the  contractor  purchased 
the  materials  as  agent  of  the  owner  only.^^ 

"  Malone  v.  Big  Flat  G.  M.  Co.,  76  Cal.  578,  581,  IS  Pac.  Rep.  772; 
Russ  L.  &  M.  Co.  V.  Garrettson,  87  Cal.  589,  596,  25  Pac.  Rep.  747. 

Montana.  But  otherwise  where  the  complaint  alleged  the  price  as 
being  both  the  agreed  price  and  the  reasonable  value,  and  the  account 
stated  a  certain  amount  as  per  agreement  and  another  amount  as  the 
reasonable  value:  Bardwell  v.  Anderson,  18  Mont.  528,  46  Pac.  Rep. 
443. 

"  Wagner  v.  Hansen,  103  Cal.  104,   106,  37  Pac.  Rep.  195. 

12  Palmer  v.  Lavigne,  104  Cal.  30,  34,  37  Pac.  Rep.  775. 

Oregon.  See,  as  variance,  name  of  purchaser:  Osborn  v.  Logus,  28 
Oreg.  302,  38  Pac.  Rep.  190,  42  Pac.  Rep.  997. 

Utah.  But  it  was  held  no  material  variance,  where  the  claim  states 
that  the  materials  furnished  and  labor  performed  were  in  pursuance 
of  a  contract  made  by  claimants  w'ith  "  Braun,  Carrol,  and  Kern,  and 
A.  Nink,"  who  were  the  principal  contractors,  employed  by  the  owner, 
Clift,  and  the  complaint  alleged  that  claimant,  "at  the  request  of 
Clift  and  his  architects,  Carrol  and  Kern,  furnished  material,"  etc.: 
Culmer  v.  Clift,  14  Utah  286,  47  Pac.  Rep.  85. 

Washin^on.  But  see,  contra,  Powell  v.  Nolan,  27  Wash.  318,  67 
Pac.  Rep.  712. 

"  Reed  v.  Norton,  90  Cal.  590,  598,  26  Pac.  Rep.  767,  27  Pac.  Rep.  426. 
See  Mclntyre  v.  Trautner,  63  Cal.  429. 


713  VARIANCES.  §§  840-843 

§  840.  Same.  Valid,  void  contract.  Owner  purchasing 
directly.  It  is  an  immaterial  variance  where  a  subclaimant's 
claim  sets  up  an  original  contract,  and  the  complaint  against 
the  owner  avers  facts  showing  that  the  contract  with  the 
owner  was  void,  and  that  he  is  deemed,  under  the  statute, 
to  have  furnished  the  materials  and  labor  at  the  personal 
instance  and  request  of  the  owner.^* 

§  841.  Same.  Description  of  property.  The  variance  is 
immaterial  where  the  claim  described  property  sufficient  to 
embrace  the  entire  building,  and  the  complaint  described 
property  less  in  extent ;  ^^  or  where  the  claim  describes  a 
building  as  situated  upon  a  portion  of  the  land,  and  the 
complaint  describes  the  building  as  situated  upon  the  entire 
lot.i« 

§  842.  Same.  Payments.  It  is  an  immaterial  variance 
where  the  claim  correctly  states  that  one  hundred  dollars  of 
the  contract  price  was  to  be  paid  upon  completion  and  the 
balance  thirty  days  after  the  completion  of  the  building,  and 
the  complaint  states  that  three  fourths  of  the  contract  price 
was  to  be  paid  during  the  progress  of  the  work  and  the 
balance  thirty-five  days  after  the  completion,  as  the  mistake 
in  the  complaint  could  not  have  misled  the  defendant.^^ 

§  843.  Claim  of  lien  and  proof.^*  Generally.  It  has  been 
held  that  the  effect  of  a  variance  between  the  pleading  and 

"  Coss  V.  MacDonough,  111  Cal.  662,  667,  44  Pac.  Rep.  325;  Davies- 
Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641,  647,   22  Pac.  Rep.  860. 

"  WiHamette  S.  M.  Co.  v.  Kremer,  94  Cal.  205,  211,  29  Pac.  Rep.  633. 

See  "Description,"  g§  399  et  seq.,  ante;  §§  717  et  seq.,  ante. 

'«  Brunner  v.  Marks,  98  Cal.  374,   377,  33  Pac.  Rep.  265. 

See  "  Description,"  §§  399  et  seq.,  ante;  §§  717  et  seq.,  ante. 

Oregon.  Or  where  the  claim  describes  the  land  as  being-  in  "  Car- 
ter's Addition,"  and  the  complaint  avers  that  it  is  in  "  Market  Street 
Addition":  Joshua  Hendy  Machine  Works  v.  Pacific  Cable  Const.  Co., 
24   Oreg.   52,   33   Pac.    Rep.   403. 

AVaxhlngrton.  Or  where  the  complaint  differed  from  the  claim  only 
as  to  the  number  of  the  house,  the  description  being  otherwise  sufll- 
cient:  Griffith  v.  Maxwell,  20  Wash.  403,  55  Pac.  Rep.  571. 

"  Webb  V.   Kuns    (Cal.,  July  25,   1898),  54  Pac.  Rep.   78,  79. 

See  §§  845,  861,  post. 

"  See  "Claim,"  §§  379  et  seq.,  and  §§  706  et  seq.,  ante. 

As  to  variance  between  claim  and  evidence,  see  Jones  v.  Kruse,  138 
Cal.  613,  617,  618.  72  Pac.  Rep.   146   (value  of  material,  including  cart- 


§  844  mechanics'  liens.  714 

the  proof  generally  is  not  governed  by  the  same  rules  as  in 
the  case  of  a  variance  between  the  claim  of  lien  and  the 
proof.  The  claim  of  lien  must  contain  a  correct  statement 
of  the  facts  required  by  the  statute,  and  unless  so  stated, 
no  lien  can  be  enforced;  while  a  variance  between  the  com- 
plaint and  the  proof  is  otherwise  not  material,  unless  the 
adverse  party  has  been  misled  thereby  to  his  prejudice. ^^ 
But,  as  the  claim  of  lien  is  only  a  link  in  the  chain  of  evi- 
dence to  sustain  the  lien,  the  status  of  the  claim,  after  it 
has  been  fixed  by  construction,  should,  in  reason,  be  viewed 
as  any  other  piece  of  evidence. 

§  844.  Same.  Material  variances.  The  following  have 
been  held  to  be  material  variances  between  the  claim  of 
lien  and  the  proof. 

Agreed  price.  Reasonable  value.  The  variance  is  fatal, 
where  the  claim  of  lien  states  that  the  work  was  done  at  an 
agreed  price,  and  the  evidence  showed  a  contract  to  pay  the 
reasonable  value  of  the  services ;  -°  or  where  the  claim  stated 
an  agreement  to  pay  the  then  prevailing  list  price,  and  that 
no  terms  for  payment  were  specially  agreed  to,  and  the 
finding  was  that  there  was  no  agreement  to  pay  the  list 
price,  or  any  particular  price,  but  that  the  material  should 
be  paid  for  upon  completion  of  the  house. -^  Likewise  where 
the  claim  states  nothing  as  to  the  reasonable  or  other  value 
or  agreed  price  of  the  work  and  materials,  except  the  agreed 

ag-e);  Macomber  v.  Bigelow,  126  Cal.  9,  15,  58  Pac.  Rep.  312;  Wilson  v. 
Nugent,  125  Cal.  280,  284,  57  Pac.  Rep.  1008  (explaining-  and  quoting 
from  Santa  Monica  L.  &  M.  Co.  v.  Hege,  119  Cal.  376,  51  Pac.  Rep.  555); 
Bryan  v.  Abbott,  131  Cal.  222,  224,  225,  63  Pac.  Rep.  363  (owner  and 
reputed  owner;  time  of  payment);  Georges  v.  Kessler,  131  Cal.  183, 
185,  186,  63  Pac.  Rep.  466  (work  and  materials);  San  Pedro  L.  Co.  v. 
West,  3  Cal.  App.  757,  86  Pac.  Rep.  993  (contract  for  all  materials  for 
building). 

"  Santa  Monica  L.  &  M.  Co.  v.  Hege,  119  Cal.  376,  380,  51  Pac.  Rep. 
555.  See  Star  M.  &  L.  Co.  v.  Porter  (Cal.  App.,  Nov.  24,  1906),  88  Pac. 
Rep.   497,   499. 

See  "Claim,"  §§  361  et  seq.,  ante. 

2"  Jones   V.   Shuey    (Cal.,   April   3,    1895),    40   Pac.    Rep.    17. 

Utah.  But  see  Sandberg  v.  Victor  G.  &  S.  M.  Co.,  24  Utah  1,  66  Pac. 
Rep.   360    (express  proi.nise  the  same  as  the  law  implies,   no  variance). 

21  Nofziger  Bros.  L.  Co.  v.  Shafer,  2  Cal.  App.  219,  220,  83  Pac.  Rep. 
284. 

Arizona.  No  variance:  claim,  agreed  price;  complaint,  agreed 
price;  evidence,  no  specified  price;  See  W^olfley  v.  Hughes  (Ariz., 
March  20,  1903),  71  Pac.  Rep.  951. 


II 


715  VARIANCES,  §  844 

price  as  to  part  of  the  work,  aud  the  contract  is  entire,  and 
the  evidence  shows  that,  except  as  to  one  small  item,  there 
was  no  agreed  price  for  the  work ;  -^  or  where  the  claim 
states  that  claimant  was  to  receive  the  reasonable  market 
value,  and  the  evidence  shows  a  fixed  price;  -^  or  where  the 
claim  showed  a  contract  that  the  claimant  was  to  be  paid 
for  the  labor  done  and  materials  furnished  at  what  they 
were  reasonably  worth,  to  be  paid  for  when  the  work  ceased, 
and  the  proof  showed  an  express  contract  for  a  fixed  amount, 
and  that  claimant  partialh^  performed,  and  stopped,  owing 
to  the  refusal  of  the  owner  to  pay  him ;  -*  or  where  the  claim 
shows  a  contract  that  claimant  was  to  be  paid  the  reasonable 
value -of  the  materials  furnished,  and  that  an  order  for  the 
amount  due,  signed  by  the  original  contractor,  and  indorsed 
by  the  owner,  was  to  be  delivered  to  the  claimant  by  the 
subcontractor  upon  accfeptance  of  the  building,  and  the  proof 
showed  that  the  materials  were  bought  at  a  fixed  price,  and 
on  his  own  credit,  and  there  was  no  agreement  in  regard 
to  an  order  on  the  owner,  or  that  claimant  was  to  be  paid 
out  of  the  contract  price.^^ 

-='  Wagner  v.  Hansen,  103  Cal.  104,  107,  37  Pac.  Rep.  195.  See  Star 
M.  &  L.  Co.  V.  Porter   (Cal.  App.,  Nov.   24,   1906),   88  Pac.   Rep.   497,   499. 

"  Wilson  V.  Nugent,  125  Cal.  280,  283,  57  Pac.  Rep.  1008;  Buell  v. 
Brown,  131  Cal.  158,  162,  63  Pac.  Rep.  167.  See  Star  M.  &  L.  Co.  v. 
Porter  (CaJ.  App.,  Nov.  24,  1906),  88  Pac.  Rep.  497,  499,  attempting  to 
distinguish  Wilson  v.  Nugent,  supra,  and  other  cases. 

CoIora«1o.  Claim  and  evidence;  small  difference  in  amount  injuring 
no  one,  no  variance:  Chicago  L.  Co.  v.  Newcomb,  19  Colo.  App.  265,  74 
Pac.  Rep.  786.     See  Cannon  v.  Williams,  14  Colo.  21,  23  Pac.  Rfep.  456. 

-*  Reed  v.  Norton,  90  Cal.  590,  595,  26  Pac.  Rep.  767,  27  Id.  426.  See 
McClain  v.  Hutton,  131  Cal.  132,  142,  61  Pac.  Rep.  273,  63  Id.  182,  622; 
Wilson  v.  Hind,  113  Cal.  357,  359,  45  Pac.  Rep.  695  (as  to  time  of  pay- 
ment). 

Claim.  Bxtras  at  no  agreed  price,  upon  implied  contract;  evi- 
dence, express  contract;  variance:  Linck  v.  Johnson,  134  Cal.  xix,  66 
Pac.  Rep.   674. 

But  in  Star  M.  &  L.  Co.  v.  Porter  (Cal.  App.,  Nov.  24,  1906),  88  Pac. 
Rep.  497,  499,  where  the  claim  was  based  on  the  implied  contract,  and 
the  evidence  showed  an  express  contract,  it  was  held  no  variance,  the 
court  attempting  to  distinguish  Reed  v.  Norton,  supra,  and  other 
cases  cited,  on  the  ground  tliat  in  those  cases  it  did  not  appear  that 
the  fixed  price  was  also  the  market  price,  and,  in  the  absence  of  such 
evidence,  the  claim  would  be  substantially  false  and  misleading. 

=2  Wilson  v.  Hind,  113  Cal.  357,  359,  45  Pac.  Rep.  695.  See  Reed  v. 
Norton,  90  Cal.  590,  595,  26  Pac.  Rep.  767,  27  Id.  426;  McClain  v.  Hutton, 
131  Cal.  132,  142,  61  Pac.  Rep.  273,  63  Id.  182,  622  (as  to  time  of  pay- 
ment). 


§§  845-847  mechanics'  liens.  716 

§  845,  Same.  Time  of  payment.  Where  the  evidence 
shows  that  there  is  no  specific  agreement  as  to  time  of  pay- 
ment, and  the  claim  states  that  a  certain  portion  of  the  mate- 
rials was  to  be  paid  for  in  sixty  days,  and  the  finding  was 
that  all  the  materials  were  to  be  paid  for  in  that  time,  there 
is  a  variance,  as  to  the  terms  of  the  contract,  between  the 
claim  and  evidence  and  findings.^® 

§  846.  Same.  Nature  of  labor.  It  is  a  material  variance, 
where  the  claim  leaves  it  uncertain  whether  the  contract 
was  to  erect  and  furnish  materials  for  one  building  or  two, 
and  the  evidence  shows  that  the  contract,  and  the  work  actu- 
ally performed,  was  to  raise  up  and  move  back  and  repair 
two  houses,  and  furnish  materials  therefor.^^ 

§  847.  Same.  Deducting  credits  and  ofifsets.  Amount 
paid.  The  variance  has  been  held  material,  and  also  imma- 
terial, where  the  complaint  states  that  the  "  amount  of  the 
contract  price  of  said  lumber  and  materials  furnished  as 
aforesaid  is  two  hundred  and  forty-four  dollars  and  fifty 
cents,  and  that  no  part  thereof  has  been  paid,"  and  the  evi- 
dence showed  that  the  contract  price  was  four  hundred  and 
nineteen  dollars  and  fifty-nine  cents,  and  one  hundred  and 
seventy-five  dollars  had  been  paid  thereon.-^ 

2«  McClaln  v.  Hutton,  131  Cal.  132,  142,  61  Pac.  Rep.  273,  63  Id.  182, 
622.  See  Wilson  v.  Hind,  113  Cal.  357,  359,  45  Pac.  Rep.  695;  Reed  v. 
Norton,  90  Cal.  590,  595,  26  Pac.  Rep.  767,  27  Id.  426. 

See  §  861,  post. 

"  Eaton  V.  Malatesta,  92  Cal.  75,  28  Pac.  Rep.  54.  See  Ward  v. 
Crane,   118  Cal.  676,  678,  50  Pac.  Rep.  839. 

Compare:  Newell  v.  Brill,  2  Cal.  App.  61,  83  Pac.  Rep.  76. 

See  "  Nature  of  Labor,"  S§  130  et  seq.,  ante. 

Washington.  So  where  the  claim  set  forth  as  the  contract,  that 
"  the  claimant  agreed  to  furnish  the  lumber  material  to  be  used  in 
the  construction,  erection,  and  completion  "  of  a  certain  building,  and 
the  proof  showed  that  the  contract  was  made  after  the  building  ^.•as 
commenced,  for  the  lumber  for  its  completion:  United  States  Sav. 
L.   &  B.  Co.  V.  Jones,   9   Wash.   434,   37  Pac.  Rep.   666. 

**  Santa  Monica  L.  &  M.  Co.  v.  Hege,  119  Cal.  376,  381,  51  Pac.  Rep. 
555. 

But  in  a  later  case,  in  the  court  of  appeals,  it  was  held  that  where 
the  balance  stated  to  be  due  in  the  claim  of  lien  is  found  by  the  court 
to  be  the  amount  remaining  unpaid,  the  fact  that  material  of  a  certain 
value  was  furnished,  for  none  of  which  tlie  claimant  was  paid,  where 


717  VARiANCEa.  §§  848, 849 

§  848.  Same.  Immaterial  variances.  The  variance  has 
been  held  to  be  immaterial  in  the  following  cases. 

Name  of  owner  or  reputed  owner.  Where  the  claim  states 
that  a  certain  person  is  owner  and  reputed  owner,  and  the 
evidence  shows  that  such  person  is  the  reputed  owner  only ;  -^ 
where  the  claim  states  that  the  materials  were  furnished  to 
A.  &  Co.,  and  the  evidence  shows  that  they  were  furnished 
to  A.^'' 

§  849.  Same.  Person  contracting.  The  variance  is  im- 
material where  the  claim  states  that  the  claimants  furnished 
the  materials  to  the  contractor,  and  that  they  were  employed 
by  both  the  contractor  and  the  owner  to  furnish  the  same, 
and,  according  to  the  evidence,  that  they  first  agreed  to  fur- 
nish the  materials  to  the  owner,  and  that  they  were  used  in 
the  building  being  erected  by  the  contractor,  and  for  which 
he  purchased  them  from  claimants,  and  that  the  contractor, 
by  giving  an  order  for  payment  on  the  owner,  which  was 
paid  by  the  latter,  admitted  his  liability  therefor,  no  injury 
having  resulted  to  the  owner.^^ 

Agency  of  contractor.  Where  the  claim  states  that  T., 
as  contractor,  and  as  agent  for  and  in  behalf  of  the  owner, 
entered  into  a  contract  with  plaintiff,  and  there  was  evidence 
of  express  agency  to  employ  the  plaintiff,  there  is  no  material 
varianee.^^ 

the  evidence  shows  a  different  amount  furnished,  upon  which  pay- 
ments have  been  made,  does  not  constitute  a  variance:  Star  M.  &  L.  Co. 
V.  Porter   (Cal.  App.,  Nov.  24,   1906),  88  Pac.  Rep.  497,  498. 

See  §  850,  post. 

=»  Kelly  V.  Lemberger  (Cal.,  Sept.  15.  1896),  46  Pac.  Rep.  8.  See 
"Names,"   §§379  et  seq.,  ante. 

Colorado.  Name  of  contractor:  See  Bitter  v.  Mouat  L.  &  I.  Co.,  10 
Colo.  App.   307,  51   Pac.  Rep.  519    (1883). 

Washington.  Husband  and  wife:  See  Powell  v.  Nolan,  27  Wash. 
318,  67  Pac.  Rep.  712,  720;  Bolster  v.  Stocks,  13  Wash.  460,  43  Pac* 
Rep.  532,  534,   1099. 

3«  Tlbbetts  V.  Moore,  23  Cal.  208,  215.  See  Davis  v.  Livingston,  29 
Cal.  283;  Presbyterian  Church  v.  Santy,  52  Kan.  462,  465,  34  Pac.  Rep. 
974;   Brown   v.   Welch,    12   Hun    (N.   Y.)    582. 

31  Reed  V.  Norton,  90  Cal.  590,  596,  26  Pac.  Rep.  767,  27  Pac.  Rep.  426. 
See  Corbett  v.  Chambers.  109  Cal.  178,  185,  41  Pac.  Rep.  873;  Central 
etc.  Co.  v.  Condon,  67  Fed.  Rep.  108. 

3='  Mclntyre  v.  Trautner,   63  Cal.   429,  431. 

Haivail.     See  Allen  v.  Reist,  16  Hawn.  23. 


§§  850, 851  mechanics'  liens.  718 

§  850.  Same.  Contract.^^  Date  of  contract.  The  vari- 
ance is  not  so  material  as  to  be  fatal,  where  the  claim  states 
the  date  of  the  contract  incorrectly,  and  the  evidence  shows 
a  difference  of  two  years  in  the  date  of  the  contract.^* 

Interest  after  maturity.  Where  the  claim  set  forth  that 
the  agreement  as  to  each  item  tixed  payment  therefor  sixty 
days  after  purchase,  and  if  not  paid  within  said  time,  to  draw 
interest,  and  the  evidence  failed  to  show  any  agreement  as 
to  interest,  and  the  court  found  that  the  claim  contained 
a  true  statement  of  the  demand,  it  was  held  to  be  no  vari- 
ances^ 

Current  market  price.  Regular  market  price.  Where 
the  claim  stated  that  the  terms  of  the  contract  were  the 
"  current  market  price,"  and  the  testimony  showed  that  the 
terms  were  the  "  regular  market  price,"  there  is  no  variance.^® 

§  851.  Same.  Implied  contract.  Express  contract.  It  is 
no  material  variance,  where  the  claim  correctly  sets  forth 
an  agreement  to  pay  the  market  or  reasonable  value,  and 
the  evidence  also  shows  a  subsequent  agreement  to  pay  a 
fixed  price  as  the  ascertained  market  price  or  reasonable 
value.s'' 

^^  W^hether  the  full  amount  of  the  contract  price  Is  stated  with 
credits,  or  the  true  amount  due  after  deducting  credits,  is  immaterial, 
provided  tlie  facts  are  correctly  stated:  Star  M.  &  L.  Co.  v.  Porter  (Cal. 
App.,  Nov.  24,  1906),  88  Pac.  Rep.  497.  "In  this  respect  the  case 
differs  from  that  of  Santa  Monica  L.  &  M.  Co.  v.  Hege,  119  Cal.  376,  381, 
51  Pac.  Rep.  555,  where  there  was  a  false  statement  of  the  contract 
in  this  respect."  The  complaint  alleged  the  furnishing  of  material  of 
the  value  of  $132,  on  which  nothing  had  been  paid,  and  the  proof 
showed  the  furnishing  of  material  of  the  value  of  $212,  on  which  $80 
had  been  paid. 

But  see  §  847,  ante. 

"  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  109  Cal.  566,  568,  42  Pac.  Rep.  154 
(the  terms  and  conditions  of  the  contract,  which  are  the  essential 
elements  contemplated  by  the  statute  to  be  stated,  being  correctly  set 
forth). 

s»  McClain  v.  Hutton,  131  Cal.  132,  136,  61  Pac.  Rep.  273,  63  Id.  182, 
622. 

3«  Webb  V.  Kuns   (Cal.,  July  25,  1898),   54  Pac.  Rep.   78. 

Claim,  extra  worli;  no  evidence:  See  Newell  v.  Brill,  2  Cal.  App.  61, 
63,   83  Pac.   Rep.  76    (amendment  of  complaint). 

"  San  Pedro  L.  Co.  v.  West,   3  Cal.  App.  757,   86  Pac.  Rep.  993. 

Where  complaint  and-  claim  stated  that  plaintiff  was  to  be  paid 
reasonable  sum  for  any  extra  work,  and  i-t  is  found  that  this  is  true, 
and,  in  addition,  that  plaintiff  performed  all  the  extra  work  men- 
tioned in  tlie  complaint,  and  fully  completed  the  same,  and  the  same 


II 


719  VARIANCES.  §§  852, 853 

§  852.  Same.  Nature  of  work.  It  is  an  immaterial 
variance,  where  the  claim  stated  that  the  contract  was  to  do 
all  the  work  and  furnish  all  the  materials  necessary  to  com- 
plete all  of  the  plumbing-work  of  the  building,  and  the  evi- 
dence showed  an  agreement  to  do  the  gas-fitting  and  plumb- 
ing, there  beiug  a  close  kinship  between  gas-fitting  and 
plumbing,  and  no  one  could  be  misled  thereby.^^ 

§  853.  Pleading  and  proof.^''  Generally.  The  technical 
doctrine  of  variances  of  the  common  law  has  no  application 
to  variances  between  the  pleadings  and  the  proof,  or  find- 
ings, under  existing  practice ;  and,  under  the  broad  rules 
of  pleading  and  liberal  right  of  amendment  under  the  Cali- 
fornia codes,  substantial  justice  is  sought,  regardless  of  tech- 
nical forms ;  and  the  actual  misleading  of  the  adverse  party 
to  his  prejudice  is  the  fundamental  rule.*" 

was  accepted  by  the  defendants  (stating  the  thiie),  and  defendants 
agreed  to  pay  therefor  a  definite  sum,  this  wiU  sustain  the  aUegations 
in  the  complaint,  since  this  is  not  a  finding-  that  the  work  was 
done  under  a  contract  for  an  agreed  price:  Santa  Monica  L.  &  M.  Co. 
V.  Hege,  119  Cal.  376,  380,  51  Pac.  Rep.  555.  See  McClain  v.  Hutton,  131 
Cal.   132,  136.  63  Pac.   Rep.   182,   61  Id.   273,  63  Id.   622. 

Utah.  See  Sandberg  v.  Victor  G.  &  S.  M.  Co.,  24  Utah  1,  66  Pac.  Rep. 
360,  365. 

See  §  860,  post. 

^  Newell  V.  Brill,  2  Cal.  App.  61,  62,  83  Pac.  Rep.  76. 

See  ■•  Nature  of  Labor,"  §§  130  et  seq.,  ante. 

^V's^.sllin8•ton.  And  it  is  immaterial,  where  the  claim  is  for  material 
used  in  the  construction  and  completion  of  a  one-story  refrigerating- 
machine  building  and  boiler-house,  and  the  proof  shows  that  there 
were  two  buildings  which  are  substantially  one,  there  being  an  old 
boiler-house  on  the  grounds,  which  was  overhauled  and  rebuilt  sub- 
stantially, and  substantially  connected  with  the  refrigerator-macliine 
building,  there  being  no  chance  for  mistake  as  to  the  identity  of  the 
structures:  Peterman  v.  Milwaukee  B.  Co.,  11  Wash.  199,  39  Pac.  Rep. 
452. 

•"  As  to  variance  betweeo  evidence  and  complaint,  see  Macomb er 
V.  Bigelow,  126  Cal.  9,  15,  58  Pac.  Rep.  312;  Georges  v.  Kessler,  131  Cal. 
183,   185,  186,  63  Pac.  Rep.  466    (no  variance). 

See  "Variances,"  §§835  et  seq.,  ante;  "Complaint,"  §§670  et  seq., 
ante;   "Evidence,"  §§764   et  seq.,  ante. 

*"  See  Kerr's  Cyc.  Code  Civ.  Proc,  §  469,  and  note. 

Idalio.  Variance  between  pleadings  and  proof  immaterial,  unless 
adverse  party  prejudiced:  Lewis  v.  Utah  Const.  Co.,  10  Idaho  214,  77 
Pac.  Rep.  336. 

AVasiiiugton.  Ernst  v.  Fox,  26  Wash.  526,  67  Pac.  Rep.  258;  Olson  v. 
Snake  River  V.  R.  Co.,  22  Wash.  139,  60  Pac.  Rep.  156. 

Test  of  departure  in  pleading:  See  Childs  L.  &  M.  Co.  V.  Page,  28 
Wash.   128,  68  Pac.  Rep.   373    (contract,  legal   effect,   in  hrec  verba). 

Lower  contract  price  siiown;  no  variance:  Irby  v.  Pliillips,  40  Wash. 
618,  82  Pac.  Rep.   931. 


§§  854-856  mechanics'  liens.  720 

§  854.  Same.  Material  variances.  Contract.  Where  the 
contract  alleged  in  the  complaint  differs  in  substance  from 
that  proved  or  found  by  the  court,  the  variance  is  fatal.*^ 

Agreed  price.  No  price  agreed.  Or  where  the  plaintiff 
alleged  an  express  contract  at  an  agreed  price,  and  the  evi- 
dence shoAved  that  there  was  no  agreed  price ;  *'  or  that  there 
was  a  contract  for  the  reasonable  value,  less  than  the  express 
price  alleged.*^ 

§  855.  Same.  Valid,  void  contract.  Contracting  directly 
with  owner  or  agent.  In  an  action  to  enforce  the  lien 
of  a  mechanic  or  material-man,  the  complaint  must  show, 
either  that  the  building  was  constructed  under  a  valid 
statutory  original  contract,  or  that  it  was  not ;  and  a 
complaint  upon  one  theory  will  not  support  a  judgment 
rendered  upon  another.  So  where  the  complaint  is  based 
upon  the  theory  that  the  statutory  original  contract  was 
void,  and  that  the  claimant  dealt  directly  with  the  owner, 
and  that  he  was  liable  for  the  whole  of  their  claims,  a  judg- 
ment is  not  supported,  which  is  based  upon  findings  that 
these  allegations  are  not  true,  that  the  statutory  original 
contract  was  valid,  and  that  the  claimants  dealt  directly, 
not  with  the  owner,  but  with  the  contractor.** 

§  856.  Same.  Indefinite  contract.  Where  the  complaint 
alleged  a  contract  to  grade  the  "  south  half  of  Chestnut 
Street,"  between  certain  streets,  and  the  evidence  showed 
a  contract  between  the    contractor  and  certain    owners  of 


«  Cox  V.  McLaughlin,  63  Cal.  196,  207. 

See  "  Contract,"  §§  798  et  seq.,  ante. 

*2  Wagner  v.  Hansen,  103  Cal.  104,  107,  37  Pac.  Rep.  195.  See  Star 
M.  &  L.  Co.  V.  Porter   (Cal.  App.,  Nov.  24,   1906),  88  Pac.  Rep.  497,  499. 

See  §  851,  ante. 

^  Jones  V.  Shuey  (Cal.,  April  3,  1895),  40  Pac.  Rep.  17  (the  claim  of 
lien  corresponding  with  the  allegations  of  the  complaint). 

"  Reed  v.  Norton,  99  Cal.  617,  620,  34  Pac.  Rep.  333. 

But  see  discussion,  "Contract,"  §§689  et  seq.,  §§798  et  seq.,  §§807 
et  seq.,  ante;  and  "Complaint,"   §§687,   691,   692,  697,   698,  ante. 

In  Parker  v.  Savage  Placer  Mining  Co.,  61  Cal.  348,  where  the 
original  contract  was  valid,  and  the  complaint  of  the  subclaimant 
alleged  that  the  plaintiff  performed  labor  at  tlie  special  instance  and 
request  of  the  owner,  and  the  proof  showed  that  the  plaintiff  was 
employed  by  the  contractor,  it  was  held  no  variance. 


721  VARIANCES.  §§  857-859 

property  fronting  on  "  Chestnut  — 1/2  street,"  that  the  con- 
tractor was  to  perform  the  work  "  in  front  of  the  property 
here  represented,"  and  grade  the  same  to  the  official  line 
and  grade,  the  variance  is  fatal,  tlie  contract  proved  being 
too  uncertain  and  indefinite.*^ 

§  857.  Same.  Person  contracting.  And  it  is  a  material 
variance,  where  the  complaint  alleges  only  that  materials 
were  furnished  to  the  contractor,  and  the  proof  and  find- 
ings are  that  the  materials  were  bought  by  the  owner  directly 
from  the  plaintiffs.'*® 

Agency.  Where  the  complaint  alleges  one  person  to  be 
the  owner,  and  that  the  plaintiff  was  employed  by  his  agent, 
and  the  proof  shows  that  the  latter  w^as  not  the  agent  of 
the  owner,  it  is  a  material  variance.*^ 

§  858.  Same.  Nature  of  work.  It  is  a  material  variance, 
where  the  complaint  sets  forth  a  contract  whereby  plaintiff 
agreed  to  furnish  the  material  and  erect  for  defendant  a  cer- 
tain building,  and  the  evidence  shows  that  the  contract,  and 
the  work  actually  performed,  was  to  raise  up,  move  back,  and 
repair  two  houses,  and  furnish  materials  therefor.*^ 

§  859.  Same.  Fund.  Contractual  indebtedness.  It  is  a 
material  variance,  where  a  complaint  for  materials  alleges 
that  the  balance  of  the  contract  price  is  still  in  the  hands  of 
the  owner  of  the  building,  and  bases  the  right  of  the  recovery 
on  that  ground  alone,  and  the  proof  shows  that  there  is  a 
mere  assumption  by  the  owner  of  the  debt,  or  his  agreement 

«  Rauer  v.  Fay,  110  Cal.  361,  42  Pac.  Rep.  902.  See  Rauer  v.  Welsh 
(Cal.,   Dec.   10,   1895),   42   Pac.   Rep.  904. 

See  "Contract,"  §§387  et  seq.,  ante;  "Description,"  §§399  et  seq., 
ante. 

«  Gibson  v.  Wheeler,  110  Cal.  243,  245,  42  Pac.  Rep.  810.  See  "Com- 
plaint," §§  692  et  seq.,  ante. 

Ha^vaii.  Variance,  contract  with  owner  alleged;  subcontract 
proved:  Allen  v.  Reist,   16  Hawn.  23. 

"  Eaton  V.  Rocca,  75  Cal.  93,  96,  16  Pac.  Rep.  529.  See  Hooper  v. 
Flood,  54  Cal.  218. 

See  "Complaint,"  §§692  et  seq.,  ante. 

**  Eaton    V.    Malatesta,    92    Cal.    75,    28    Pac.    Rep.    54.      See    Ward    v. 
Crane,  118  Cal.   676,  50  Pac.  Rep.  839. 
Mech.  Liens —  46 


§§  860, 861  mechanics'  liens.  722 

to  pay  such  debt,  which  would  not  create  or  carry  a  right 
of  lien.*^ 

§  860.  Same.  Immaterial  variance.  It  has  been  held 
that  there  is  no  material  variance  in  the  following  cases. 

Express  price.  Reasonable  value.  Where  the  subelaim- 
ant's  complaint  avers  that  the  owner,  through  her  agent, 
hired  claimants  at  certain  specified  wages  per  day,  and  the 
court  finds  that  all  the  amounts  for  which  the  judgment  was 
given  were  "  the  reasonable  value  of  said  work  and  materials 
done  and  furnished  " ;  ^°  or  where  the  complaint  alleged  that 
the  defendant  agreed  to  pay  therefor  what  the  materials 
were  reasonably  worth,  and  the  proof  showed  an  agreement 
to  pay  "  the  regular  market  value  " ;  "  or  where  the  com- 
plaint alleged  a  special  contract,  and  that  the  defendant 
prevented  the  performance  thereof,  and  alleged  the  reason- 
able value  of  the  work  performed,  and  the  evidence  and  find- 
ings showed  no  special  contract.^^ 

§  861.  Same.  Time  of  payment.  The  variance  is  imma- 
terial, where  the  complaint,  by  mistake,  alleged  that  three 
fourths  of  the  contract  price  was  to  be  paid  during  the 
progress  of  the  work,  and  the  balance  thirty-five  days  after 
the  completion,  and  the  proof  and  findings  showed  that  one 
hundred  dollars  of  the  contract  price  was  to  be  paid  upon 

«  Gibson  v.  W'heeler,  110  Cal.  243,  245,  42  Pac.  Rep.  810. 

=0  Green  v.  Clifford,  94  Cal.  49,  53,  29  Pac.  Rep.  331  (it  does  not 
appear  whether  there  was  also  any  finding  of  a  hiring  at  specified 
wages). 

See  §  851,  ante. 

Montana.  Or  where  the  claim  stated  that  "  Lewisohn  (whose 
cliristian  name  is  unknown)  "  was  the  owner,  and  the  complaint 
alleged  that  a  copartnership  —  said  Lewisohn  and  another  —  were 
the  owners:  Richards  v.  Lewisohn,  19  Mont.  128,   132,  47  Pac.  Rep.  645. 

Oregon.  As  to  name  of  employer,  see  Osborn  v.  Logus,  28  Oreg. 
302,  38  Pac.  Rep.  190,  42  Pac.  Rep.  997. 

AVanhington.  So  the  variance  is  immaterial  where  the  claim  states 
that  the  husband  is  the  reputed  owner,  and  the  proof  shows  that  the 
property  was  community  property,  that  being  unknown  to  the  claim- 
ant at  the  time  of  filing  the  claim:  Douthitt  v.  ftlacCulsky,  11  Wash. 
601,  40  Pac.  Rep.   186. 

"  Santa  Monica  L.  &"  M.  Co.  v.  Hege,  119  Cal.  376,  380,  51  Pa...  Rep. 
B55.     See  preceding  sections,  this  cnapte'r. 

«  Ehlers  v.  Wannack,  118  Cal.  310,  313,  50  Pac.  Rep.  433. 


723  VARIANCES.  §§  862, 863 

completion,  and  tlie  balance  thirty  days  after  completion,  the 
claim  of  lien  correctly  describing  the  contract.^^ 

§  862.  Same.  Subclaimant.  Owner's  employee.  Where 
the  complaint  alleged  that  the  plaintiff  was  an  employee  of 
the  original  contractor,  and  the  proof  showed  an  express 
agency  of  the  contractor  to  employ  the  plaintiff,  it  was  held 
that  there  was  no  such  material  variance  between  the  com- 
plaint and  the  proofs  as  to  preclude  the  enforcement  of  the 
lien.^* 

§  863.     Same.     Bond.     Signed  by  principals.    Unsigned. 

Where,  in  the  body  of  the  complaint,  it  is  averred  that  the 
principals  executed  a  bond,  and  the  copy  of  the  bond,  which 
is  attached  as  "  Exhibit  A,"  and  made  part  of  the  complaint, 
shows  that  it  was  not  signed  by  the  principals,  and  the  bond 
offered  in  evidence  was  identical  with  the  exhibit,  there  is 
not  a  material  variance.^^ 

53  Webb  V.  Kuns   (Cal.,  July  25,  1898),  54  Pac.  Rep.  78,  79. 

See  §§  842.  845,  ante. 

"  Mclntyre  v.  Trautner,   63  Cal.  429,   431. 

=«  Kurtz  V.  Forquer,  94  Cal.  91,  94,  29  Pac.  Rep.  413  (the  contract 
under  the  bond  being  strictly  joint,  and  not  joint  and  several,  dls- 
tinKuifihing-  Sacramento  v.  Dunlap.  14  Cal.  421.  and  People  v.  Hartley, 
21  Cal.  585,  82  Am.  Dec.  758,  and  following  People  v.  Love,  25  Cal.  520. 
530). 


§  864  mechanics'  liens.  724 


CHAPTER    XL. 

TRIAL    AND    PRACTICE. 

§  864.  Practice.     In  general. 

§  865.  Amendment.     Express  and  implied  contract. 

§  866.  Same.     Modification  of  contract. 

§  867.  Same.     Description  of  property. 

§  868.  Same.     Relation  of  amendment  to  time  of  commencing  action. 

§  869.  Consolidation  of  actions. 

§  870.  Same.     Rights  of  claimants  against  one  another. 

§  871.  Deposit  of  money  in  court. 

§  872.  Same.     Payment  of  balance  of  fund. 

§  873.  Intervention.     Effect  of. 

§  874.  Same.     Right  to  intervene. 

§  875.  Jury  trial. 

§  876.  Same.     Verdict.     Setting  aside  verdict. 

§  877.  New  trial. 

§  878.  Nonsuit.     When  sustained  upon  appeal. 

§  879.  Same.     When  not  granted. 

§  880.  Same.     Statute  of  limitations. 

§  881.  Same.     Time  of  filing  claim. 

§  882.  Same.     Excessive  claim.     Forfeiture. 

§  883.  Same.     Admission  in  answer.     Contract. 

§  884.  Same.     Common  counts.     Express  contract. 

§  864.  Practice.  In  general.^  With  regard  to  rules  of 
practice  in  mechanic's-lien  cases,  section  eleven  hundred  and 

^  Continued  practice.  Constant  and  uniform  procedure  continued 
by  the  courts  for  a  long  time  are  strongly  presumptive  that  the  prac- 
tice is  correct:  Giant  P.  Co.  v.  San  Diego  F.  Co.,  78  Cal.  193,  20  Pac. 
Rep.  419. 

Defaults.  Relief  from.  ^Vide  discretion.  Under  Kerr's  Cyc.  Code 
Civ.  Proc,  §  473,  a  wide  latitude  of  discretion  is  vested  in  courts 
of  original  jurisdiction  in  relieving  parties  from  default  in  the  per- 
formance of  acts,  where  such  default  tends  to  obstruct  a  hearing  of 
pending  actions,  and  where  the  exercise  of  such  discretion  is  to 
accord  litigants  a  trial  upon  the  merits,  the  abuse  must  clearly 
appear:  Klokke  v.  Raphael  (March  27,  1908),  6  Cal.  App.  Dec.  508, 
96  Pac.  Rep.  392. 

Estoppel  by  stipulation  to  take  deposition:  Palmer  v.  Uncas  M.  Co., 
70  Cal.   614,  616,  11  Pac.  Rep.  666. 

Specifications  of  particular  errors  of  law  on  which  appellant  will 
rely  are  not  necessary"ln  a  bill  of  exceptions.  So  of  Improper  exclu- 
sion of  evidence:  Hagman  v.  Williams, '88  Cal.  146,  151,  25  Pac.  Rep. 
1111.  So  as  to  the  ground  that  the  finding  or  decision  is  not  sup- 
ported by  the  evidence:  Snell  v.  Payne,  115  Cal.  218,  220,  46  Pac.  P.ep. 
1069. 


'^25  TRIAL   AND    PRACTICE.  §  864 

ninety-eight  -  provides :  "  Except  as  otherwise  provided  in 
this  chapter,^  the  provisions  of  part  two  of  this  code  are 
applicable  to,  and  constitute  the  rules  of  practice  in,  the 
proceedings  mentioned  in  this  chapter."  Only  those  rules 
peculiar  to  or  specially  illustrating  proceedings  in  mechanic's- 
lien  cases  will  be  considered  in  this  title.  Principles  of  general 
application  decided  in  mechanic's-lien  cases,  here  considered 
for  the  sake  of  completeness,  will  be  relegated  to  the  notes. 

Kstoppel.     As  to  attorneys'  fees,  see  Rapp  v.  Spring-  Valley  G    Co 
74  Cal.  532,  534,  16  Pac.  Rep.  325. 

Default:  See  "  Judg-ment,"  §§903  et  seq.,  post. 

Fictitious  defendants.  Dis^niissal.  In  a  suit  to  enforce  a  lien 
ag-ainst  the  owner,  the  contractors,  and  several  fictitious  defendants, 
and  the  owner  only  was  served  and  appeared,  and  no  disposition  of 
the  case  was  made  as  to  those  not  appearing-,  and  no  objection  was 
made  in  the  court  below  to  proceeding  with  the  trial  of  tlie  cause,  the 
court  may,  under  §  579  of  the  Code  of  Civil  Procedure,  give  judgment 
against  the  owner  without  determining  the  liability  of  the  other  de- 
fendants:  Kelley   v.   Plover,    103   Cal.   35,   36,    36   Pac.   Rep.    1020. 

Granting  motion  to  strike  out  matter  upon  which  cause  of  action 
not  based:  See  Gilliam  v.  Brown,   126  Cal.  160,   163,  58  Pac.  Rep.  466. 

Stay  of  proceedings;  banlfruptcy  proceedings:  See  In  re  Grissler 
136  Fed.  Rep.   754,   69  C.  C.  A.   406. 

Colorado.  Decree  making  claim  of  receiver  a  lien  on  property:  See 
Bassick  M.  Co.   v.  Schoolfleld,   15  Colo.   376,   24   Pac.   Rep.   1049. 

Idaho.  Continuance,  discretionary;  ruling  not  reversed,  except  for 
abuse:  See  Robertson  v.  Moore,  10  Idaho  115,  77  Pac.  Rep.  218. 

Nevada.  Dismissal  with  relation  to  interveners:  Elliott  v  Ivers 
6    Nev.    287. 

New  Mexico.  Where  adult  defendants  have  the  suit  to  foreclose 
liens  dismissed  as  to  certain  other  defendants,  minors,  the  former  are 
liable  to  pay  the  entire  debt:  Armijo  v.  Mountain  E.  Co.,  11  N  M  235 
67  Pac.  Rep.  726.  '  •       •         - 

Dismissal:  Newcomb  v.  White,  5  N.  M.  435,  23  Pac.  Rep.  671. 
Oregon.  See  Osborn  v.  Logus,  28  Oreg.  302,  37  Pac.  Rep.  456,  38 
Pac.  Rep.  190,  42  Pac.  Rep.  997,  for  a  number  of  points  of  practice 
fully  discussed;  Capital  L.  Co.  v.  Ryan,  34  Oreg.  73,  54  Pac.  Rep.  1093. 
Preference  in  calendar  applies  only  to  the  trial  in  the  circuit  court- 
See  Falconio  v.  Larsen,  31  Oreg.  137;  and  not  on  appeal:  Hand  Mfg 
Co.  V.  Marks,  36  Oreg.  523,  53  Pac.  Rep.  1072. 

AVashington.  Reference  to  referee:  See  Wheeler  v.  Ralph  4  Wash 
617,   30   Pac.   Rep.   709. 

Objections  against  parties  having  prior  claims  on  fund:  See  Munroe 
v.  Sedro  L.  &  S.  Co.,  16   Wash.  694,  48  Pac.  Rep.   405. 

Failure  to  serve  cross-complaint;  dismissed  on  rehearing,  notwith- 
standing recital  of  decree  and  Hndings:  See  Powell  v.  Nolan  '>!  Wash 
318,  67  Pac.  Rep.  712,  721. 

Tender  as  admission  of  amount  due:  See  Young  v.  Borzone  26 
Wash.    4,   66   Pac.   Rep.    135,    139,   421. 

Cost  of  claim  of  lien  not  deniandable  on  tender  before  suit:  Youn" 
V.   Borzone,   26  Wash.   4,  66   Pac.   Rep.   135,   421.  *  " 

Rea.souable    attorneys'    fees    stipulated    at    trial;    uo    evidence:    See 
Greene  v.  Finnell,  22  Wasli.  186,  60  Pac.  Rep.   144. 
^  Kerr's   Cyc.   Code   Civ.   Proc,    §  1198. 
»  Kerr's  Cyc.  Code  Civ.  Proc,  §§  1183-1203a. 


§§  865, 866  mechanics'  liens.  726 

§  865.  Amendment.^  Express  and  implied  contract.  The 
complaint  in  an  action  to  enforce  a  contractor's  lien,  in  which 
a  special  contract  between  the  contractor  and  the  owner  was 
stated,  can  be  changed,  by  amendment,  into  an  action  on  the 
contract,  which  contract  may  be  counted  on  specially,  or 
the  common  counts  in  assumpsit,  in  certain  cases,  may  be 
used,  the  general  rules  applicable  to  which  have  already  been 
indicated.® 

§  866.  Same.  Modification  of  contract.  Where  the  com- 
plaint alleges  a  modification  of  the  contract,  the  answer  need 
not  set  it  up ;  and  where  the  plaintiff  strikes  out  such  allega- 
tion by  amendment  after  resting,  the  defendant  may  avail 
himself  of  proof  of  such  modification,  and  amend  his  answer 
to  conform  to  the  proof.'' 

*  See   "Appeal,"   §956:    "Description,"   §§399  et  seq.,   ante. 

Aniendineut  to  answer:  See  Willamette  S.  M.  L.  &  M.  Co.  v.  Los 
Ang-eles  Colleg-e   Co.,  94  Cal.   229,   240,   29  Pac.  Rep.   629. 

Ainendnient  to  conform  to  proof  of  extent  of  lien:  See  "Decree," 
§§  903  et  seq.,  post. 

Anieuclnient  affeetinK'  injunction:  See  §§  645  et  seq.,  ante. 

Relation  of  amendment  to  commencement  of  action:  See  §§  G49  et 
seq.,   ante. 

Complaint  in  action  on  express  contract;  prevention  of  perform- 
ance; amendment  to  quantum  meruit:  See  Cox  v.  McLaughlin,  76  Cal. 
60,   63,   IS  Pac.  Rep.   100.   9  Am.  St.  Rep.   164. 

Amendment  of  complaint  as  to  notice  to  owner:  See  Weldon  v. 
Superior  Court,  138  Cal.   427,   71   Pac.  Rep.   502. 

Montana.  Amendment  of  answer:  See  A.  M.  Holter  H.  Co.  v.  On- 
tario'M.  Co.,  24  Mont.  184,  61  Pac.  Rep.  3. 

Washington.  Appellate  court  treating  pleading-  as  amended;  satis- 
faction of  superintendent:  See  Lang  v.  Crescent  Coal  Co.  (Wash.,  Nov. 
1,  1906),  87  Pac.  Rep.   261. 

»  Castagnino  v.  Balletta,  82  Cal.  250,  256,  23  Pac.  Rep.  127. 

See  "  Common  Counts,"  §§  673  et  seq.,  and  §§  638  et  seq.,  ante. 

Arizona.  Amendment  to  complaint;  review:  O'Connor  v.  Adams,  6 
Ariz.   404.   59   Pac.   Rep.    105. 

Colorado.  Amendment  not  changing  cause  of  action  of  contractor 
to  that  of  subcontractor:  See  Harris  v.  Harris,  18  Colo.  App.  34.  69  Pac. 
Rep.  309,  s.  c.  9  Colo.  App.  211,  47  Pac.  Rep.   841. 

Making  new  cause  of  action  (notes):  Davis  v.  Johnson,  4  Colo.  App. 
545,   36  Pac.  Rep.  887. 

«  Flinn  v.  Mowry,  131  Cal.  481,  485,  63  Pac.  Rep.  724,   1006. 

Amended  complaint,  alleging  changes  made  in  conformity  -wltli 
contract,  not  constituting  ne^v  or  ditferent  cause  of  action;  See 
People's  L.  Co.  v.  Gillard  (Cal.  App.,  June  20,  1907),  90  Pac.  Rep.  556, 
s.  c.  136  Cal.  55,  57,  68  Pac.  Rep.  576. 

Washington.  Amendment  of  complaint  to  correspond  with  proof 
showing  smaller  contract  price,  when  alleged:  See  Irby  v.  Phillips, 
40  Wash.  618,  82  Pac.  Rep.  931. 


H 


727  TRIAL  AND   PRACTICE.  §§  867-869 

§  867.  Same.  Description  of  property.  AYliere,  in  an 
action  to  enforce  liens  upon  a  building,  tiie  building  is  shown 
to  be  upon  more  land  than  is  described  in  the  complaint,  but 
the  claim  of  lien  is  sufficient  to  embrace  the  entire  building, 
the  court  should  direct  an  amendment  to  be  made  to  the 
complaint,  so  that  it  may  conform  to  the  proofs." 

§  868.  Same.  Relation  of  amendment  to  time  of  com- 
mencing action.  Where  an  amendment,  based  upon  the  same 
cause  of  action,  is  made  to  the  complaint,  it  relates  back  to 
the  date  upon  which  the  original  complaint  was  filed,  with 
reference  to  the  time  of  commencing  the  action  to  foreclose 
the  lien.^  An  amendment  to  the  complaint,  by  a  material- 
man, to  foreclose  a  lien  for  material  furnished  to  the  con- 
tractor, making  the  contractor  a  party,  after  the  statutory 
time  for  commencing 'the  action  has  passed,  does  not  preju- 
dice the  owner  of  the  premises,  because  the  contractor  is  not 
a  necessary  party  to  the  action.^ 

§  869.  Consolidation  of  actions.^"  Section  eleven  hun- 
dred and  ninety-five  ^^  provides  that  "  when  separate  actions 
are  commenced,  the  court  may  consolidate  them."  ^- 

'  Wniamette  S.  M.  Co.  v.  Kremer,  94  Cal.  205,  211,  29  Pac.  Rep.  633. 

See  §§  399  et  seq.,  ante. 

Colorailo.     See  Martin  v.  Simmons,  11  Colo.  411,   18  Pac.  Rep.   535. 

8  White  V.  Soto,  82  Cal.  654,  656,  23  Pac.  Rep.  210. 

»  Green  v.  Clifford,  94  Cal.  49,  52,  29  Pac.  Rep.  331.  See  White  v. 
Soto,  82  Cal.  654,  656,  23  Pac.  Rep.  210;  Casserly  v.  Waite,  124  Mich. 
157,   161,   82  N.  W.  Rep.  841,   83  Am.  St.  Rep.   320. 

See  "'Time  of  Commencing-  Action,"  §§649  et  seq.,  ante;  also  note 
7  Am.  &  Eng.  Ann.  Cas.  947. 

"  Consolidated  aetiou;  sing^le  action:  See  Union  L.  Co.  v.  Simon 
(Cal.  App.,  March    13,    1906),   89  Pac.  Rep.   1077,   1080. 

See  "Intervention,"  §§873  et  seq.,  post. 

Various  cases  of  consolidation  o£  actions:  Palmer  v.  Uncas  M.  Co., 
70  Cal.  614,  11  Pac.  Rep.  666;  Harmon  v.  San  Francisco  &  S.  R.  R.  Co., 
86  Cal.  617,  25  Pac.  Rep.  124;  Marble  L.  Co.  v.  Lordsburg  Hotel  Co.,  96 
Cal.  332,   31   Pac.  Rep.   164;  Petersen  v.  Shain    (Cal.),  33  Pac.  Rep.   1086. 

Consolidation  on  appeal:  See  Valley  L.  Co.  v.  Struck,  146  Cal.  206, 
80    Pac.    liep.    405. 

Colorado.     Consolidation  of  actions:  See  Eagle  G.  M.  Co.  v.  Bryarly, 
28  Colo.  262,  65  Pac.  Rep.  52,  53. 
>       Montana.     Consolidation  ordered  where  the  parties  are  the  same  in 
each    suit,    and   the    subject-matter   such   as   may   be   joined:   Mason   v. 
Germaine.   1   Mont;  267    (1865). 

"   Kerr's  Cyc.  Code  Civ.  I'roc,  §  1195. 

^  As  to  attorneys'  fees  in  eacU  action,  see  §§  935   et  seq.,  post. 


§  870  mechanics'  liens.  728 

Trial  after  consolidation.  A  plaintiff  is  not  entitled  to  a 
separate  trial  of  the  respective  claims  of  plaintiffs  in  the 
consolidated  action ;  ^^  and,  after  the  consolidation,  the 
actions  should  be  tried  as  a  single  action  by  the  respective 
plaintiffs  against  the  defendants." 

Findings.  The  decision  of  the  court  should  be  embodied 
in  a  single  set  of  findings,  after  the  actions  have  been  con- 
solidated.^^ 

§  870.  Same.  Rights  of  claimants  against  one  another. 
Upon  the  consolidation  of  two  or  more  actions  to  foreclose 

An  early  statute  required  that  every  lien  on  the  same  property 
should  be  litigated  and  enforced  in  the  same  action,  and  it  was  held 
that  every  suit  brought  to  enforce  a  particular  lien  must  be  regarded 
as  a  proceeding  to  enforce  all  the  liens  against  the  same  property: 
Mars  V.  McKay,   14  Cal.   127,   129    (1855). 

Washington.  Prior  to  act  of  1893:  See  Douthitt  v.  MacCulsky,  11 
Wash.  601,  40  Pac.  Rep.  186;  Harrington  v.  Miller,  4  Wash.  808,  31  Pac. 
Rep.  325  (and  the  court,  it  was  held,  could  segregate  some  of  the 
actions  after  consolidation,  and  proceed  with  the  others  to  final  judg- 
ment, and  likewise,  subsequently,  with  the  segregated  actions). 

Consolidation  of  actions:  See  Peterson  v.  Dillon,  27  Wash.  78,  67 
Pac.    Rep.    397. 

Power  to  consolidate  actions  inherent  in  courts  of  equity:  Peterson 
V.  Dillon,  27  Wash.  78,  67  Pac.  Rep.  397. 

"  Curnow  v.  Happy  Valley  B.  G.  &  H.  Co.,  68  Cal.  262,  263,  9  Pac. 
Rep.   149. 

"  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co.,  94  Cal. 
229,  232,   29  Pac.  Rep.  629. 

Washington.  "In  consolidated  cases,  each  case  should  be  treated 
on  its  merits,  as  if  it  stood  alone.  The  rules  of  evidence  are  the 
same,  whether  cases  are  tried  separately  or  together,  and  no  incom- 
petent evidence  is  admissible.  The  parties  in  one  of  several  consoli- 
dated cases  ought  not  to  be  deprived  of  any  legal  right  by  reason  of 
the  introduction  of  proper  evidence  in  another  case,  simply  because 
the  two  are  tried  together.  The  object  of  the  legislature  in  providing 
for  the  consolidating  of  these  lien  cases  was  to  facilitate  the  trial  and 
avoid  unnecessary  expenses,  and  not  to  deprive  a  wortliy  class  of  liti- 
gants of  any  rights  or  privileges  they  would  have  if  their  actions 
were  brought  separately":  Harrington  v.  Miller,  4  Wash.  808,  813,  31 
Pac.   Rep.   325. 

Where  owner  party  to  only  some  of  consolidated  actions,  but 
appeared  on  the  trial  of  the  consolidated  actions,  she  was  held  bound 
by  the  decree  in  the  consolidated  action:  Douthitt  v.  MacCulsky,  11 
Wash.  601,  40  Pac.  Rep.  186   (statute  prior  to  act  of  1893). 

'5  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co.,  94  Cal. 
229,  232,  29  Pac.  Rep.  629. 

See  Kerr's  Cyc.  Code  Civ.  Proc,  §  1194,  and  note,  declaring  the  rank 
of  liens  in  the  judgment;  and  see  "Findings,"  §§885  et  seq.,  and 
"Decree,"  §§903  et  seq.,  post. 

Mere  fact  that  court  makes  separate  findings  in  each  case  is  not 
sufficient  ground  for  reversal:  Marble  L.  Co.  v.  Lordsburg  Hotel  Co., 
96  Cal.  332,  333,  31  Pac.  Rep.  164. 


729  TRIAL    AND    PRACTICE.  §§  871-873 

mechanics'  liens,  the  plaintiffs  become  actors  in  the  suit 
against  one  another,  as  well  as  against  the  owner,  and  each 
is  entitled  to  reduce  or  avoid  the  lien  of  any  of  the  others 
by  any  evidence  that  would  have  that  effect.^* 

§  871.  Deposit  of  money  in  court.  The  owner  of  the 
building,  after  its  completion  by  the  contractor,  holds  the 
money  reserved  as  required  by  section  eleven  hundred  and 
eighty-four  ^'  for  payment  to  the  contractor  or  lien  claim- 
ant, whichever  is  entitled  to  it;  and  if  there  is  a  contest 
between  them,  he  should  deposit  the  money  in  court,  to  be 
paid  to  the  party  adjudged  to  be  entitled  to  it.^^ 

§  872.  Same.  Payment  of  balance  of  fund.  The  remain- 
der of  the  fund  due  from  the  owner  to  the  contractor  after 
payment  of  liens  cannot  be  ordered  by  the  court  to  be  dis- 
tributed to  those  who  are  entitled  only  to  a  money  judgment 
against  the  contractor,  but  should  be  ordered  to  be  paid  to 
the  contractor.^^  But  where  the  fund  is  deposited  in  court, 
and  the  parties  are  required  to  interplead  concerning  it,  it 
has  been  held  that  the  remainder  may  be  distributed  to  one 
of  the  parties  so  interpleaded,  if  he  is  entitled  to  it,  although 
he  may  have  no  lien  upon  the  fund.-° 

§  873.  Intervention.-^  Effect  of.  Intervention  in  a  suit 
already  pending,  if  filed  within  the  time  prescribed  by  law, 

"  Kennedy  &  S.  L.  Co.  v.  Dusenbery,  116  Cal.  124,  126,  47  Pac.  Rep. 
1008. 

"  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1184. 

"  De  Camp  L.  Co.  v.  Tolhurst,  99  Cal.  631,  635,  34  Pac.  Rep.  438. 

»»  Kennedy  &  S.  L.  Co.  v.  Priet,  113  Cal.  291,  293,  45  Pac.  Rep.  336; 
Kennedy  &  S.  L.  Co.  v.  Dusenbery,  116  Cal.  124,  126,  47  Pac.  Rep.  1008. 

See    "  General    Creditors,"    §§  601    et   seq.,    ante. 

2»  Board  of  Education  v.  Blake  (Cal.,  Dec.  3,  1894),  38  Pac.  Rep.  536. 
This  case  was  one  of  garnishment  upon  a  board  of  education,  which 
was  ineffectual,  and  the  board  interpleaded  a  general  creditor  having 
no  lien  upon  the  fund,  a  creditor  who  had  a  lien  by  service  of  notice 
under  §  1184  of  the  Code  of  Civil  Procedure,  and  the  contractor;  but 
the  decision  was  based  expressly  upon  the  ground  that  the  board  haa 
interpleaded  the  parties  respecting  the  fund. 

»  See   "Consolidation,"   §§869   et   seq.,  ante. 

As  to  general  principles  of  intervention,  see  Kerr's  Cyc.  Code  Civ. 
Proc,  5  387,  and  note. 

Montana.  Summons  necessary  on  order  to  bring  parties  in:  Mason 
V.  Germaine,  1  Mont.  273   (1865). 


§  874  mechanics'  liens.  730 

is  as  much  a  compliance  with  the  act  as  an  original  suit; 
and  the  effect  is  the  same  as  if  an  original  suit  had  been  com- 
menced; but  if  the  intervener  fails  to  connect  himself  with 
the  original  suit  before  his  lien  expires,  he  cannot  take 
advantage  of  the  pendency  of  the  original  suit.^^ 

§  874.  Same.  Right  to  intervene.  In  a  suit  to  enforce 
a  mechanic's  lien  on  a  ditch,  the  mortgager  of  the  ditch,  sub- 
sequently to  the  lien,  has  no  absolute  right  of  intervention, 
and  where  a  suit  has  been  pending  for  some  time,  and  the  ap- 
plication to  intervene  was  made  just  as  the  plaintiff  was 
taking  judgment,  the  application  was  properly  refused,  and 
in  such  case,  if  the  intervener  has  a  valid  claim,  it  is  still  in 

Intervention:  See  Cook  v,  Gallatin  R.  Co.,  28  Mont.  340,  72  Pac. 
Rep.  678. 

Utah.  Intervention;  practice:  Elwell  v.  Morrow,  28  Utah  278,  78 
Pac.    Rep.    605. 

W'asbingrton.  Consent  of  the  other  parties  to  the  suit  is  necessary 
in  order  that  a  pendente  lite  assignee  of  a  mechanic's  lien  may  inter- 
vene in  a  foreclosure  suit,  and  supplemental  pleadings  required: 
Powell  V.  Nolan,  27  Wash.  318,  67  Pac.  Rep.  712  (under  Ballinger's 
Ann.  Codes  and  Stats.,  §  4824,  the  party  in  interest;  and  §  4958,  sup- 
plemental pleadings). 

Intervention:  See  Lavanway  v.  Cannon,  37  Wash.  593,  79  Pac.  Rep. 
1117. 

Claimants  intervening  after  suit  commenced:  See  Lavanway  v. 
Cannon,   37  Wash.   593,   79  Pac.  Rep.   1117,   1119. 

22  Mars  v.  McKay,  14  Cal.  127,  129  (under  §  7,  act  of  April  27,  1855, 
Stats.  1855,  p.  157,  similar  to  §  1190,  Kerr's  Cyc.  Code  Civ.  Proc,  as  to 
commencing  suit;  the  former,  however,  allowing  six  months  and  ex- 
tensions of  time,  and  the  latter  ninety  days  only,  after  the  filing  of 
the  claim):  See  De  Camp  L.  Co.  v.  Tolhurst,  99  Cal.  631,  633,  34  Pac. 
Rep.  438.  See  Tibbetts  v.  Moore,  23  Cal.  208,  214  (under  act  of  April 
19,  1856,  Stats.  1856,  p.  203,  §  7,  as  amended  by  act  of  April  22,  1858, 
Stats.  1858,  p.  225,  and  act  of  1861,  which  provided  for  special  notice 
to  be  published  upon  the  filing  of  the  petition  requiring  claimants  on 
a  certain  day  to  exhibit  proof  of  their  liens,  the  proceeding  being 
special).  Likewise:  Van  Winkle  v.  Stow,  23  Cal.  457,  461  (Stats.  1861, 
p.  495).  Under  the  peculiar  procedure  required  by  the  act,  it  was  held 
that  it  was  not  the  intent  of  the  legislature  that  there  should  be  inter- 
vention by  a  mortgagee  in   such  special  proceeding. 

Nevada.  Under  act  of  1875,  interveners  were  connected  with  the 
proceeding  to  foreclose  the  plaintiff's  lien,  by  force  of  the  statute, 
when  the  action  was  commenced  and  notice  thereof  published.  No 
formal  petition  or  order  of  court  was  required:  Hunter  v.  Truckee 
Lodge,  14  Nev.  29;  Elliott  v.  Ivers,  6  Nev.  290.  The  former  case  criti- 
cizes Mars  V.  McKay  (Cal..),  supra. 

Oklahoma.     Blanshard  v.  Schwartz,   7  Okl.   23,   54  Pac.  Rep.   303. 

Oregon.  But  see  Title  G.  &  T.  Co.  v.  W'renn,  35  Oreg.  62,  56  Pac. 
Rep.  271,  76  Am.  St.  Rep.  454,  citing  Mars  v.  McKay,  supra. 


731  TRIAL    AND    PRACTICE.  §  875 

his  power  to  assert  it,  the  decree,  of  course,  binding  only  the 
parties  to  the  action.^^ 

§  875.  Jury  trial.^*  An  action  to  foreclose  a  mechanic's 
lien  being  equitable  in  its  nature,-^  a  party  to  the  action  is 
not  entitled,  as  a  matter  of  right,  to  a  jury  trial ;  but,  under 

"  Hocker  v.  Kelley,  14  Cal.  164.     See  note  to  preceding  section. 

Colorado.  Any  person  wliose  interest,  when  disclosed,  requires  it, 
may  be  made  a  party,  pending-  proceedings  prior  to  final  decree: 
Snodgrass  v.  Holland,  6  Colo.  596.  But  as  to  parties  whose  rights 
accrued  after  suit  brought,  see  Cornell  v.  Conine-Eaton  L.  Co.,  9  Colo. 
App.  225,  47  Pac.  Rep.  912;  Fischer  v.  Hanna,  8  Colo.  App.  471,  47  Pac. 
Rep.    303. 

AVashington.  "Under  our  statute,  there  is  no  reason  why  other 
liens  than  those  of  mechanics  and  material-men  cannot  be  joined  in 
an  action  for  the  foreclosure  of  sucli  liens,  if,  in  the  opinion  of  the 
trial  court,  the  convenience  and  interests  of  all  parties  demand  such 
joinder.  All  the  liens  relate  to  the  same  subject-matter,  and  suits 
thereon  seek  a  common  remedy;  that  is,  to  have  the  property  sold  in 
satisfaction  thereof,  and  bear  such  relations  to  each  other  as  to  come 
within  the  provisions  of  our  statute  as  to  intervention":  Washington 
R.  P.  Co.  V.  Johnson,    10  Wash.   445,   448,   39   Pac.   Rep.   115. 

^*  In-structions*  to  jury;  verbal  alterations  of  contract:  See  Gilliam 
V.  Brown,   116  Cal.   454. 

Colorado.  Instruction  as  to  bad  faith,  no  issue  thereon  being  made: 
See  San  Miguel  Consol.  G.  M.  Co.  v.  Stubbs  (Colo.,  April  1,  1907),  90 
Pac.  Rep.  842,  844. 

Instruction.^  conflicting;  "heart  of  yellow  pine";  sample:  See  San 
Miguel  Consol.  G.  M.  Co.  v.  Stubbs  (Colo.,  April  1.  1907),  90  Pac.  Rep. 
842,   844. 

Idalio.  Instruction;  counterclaim  for  damages  for  delay:  See 
American  B.  Co.  v.  Regents  of  University,  11  Idaho  163,  81  Pac.  Rep. 
604,   611. 

Montana.  Instruction;  cancelation  of  contract:  Wortman  v.  ilon- 
tana  Cent.  R.  Co.,   22  Mont.   266,   56   Pac.  Rep.   316. 

Oklalionia.  Exception  to  instruction:  See  Harness  v.  McKee-Brown 
L.  Co.    (Okl.,  Feb.   13,  1907),   89  Pac.   Rep.   1020. 

Washington.  Instruction  as  to  time  of  completion  of  contract; 
damages;  conditions  surrounding  performance:  See  Anderson  v. 
Hilker,  38  Wash.  632,  80  Pac.  Rep.  848. 

Exception  to  in.struction;  "substantial  performance";  "substan- 
tial failure  to  perform":  See  Anderson  v.  Harper,  30  Wash.  378,  70 
Pac.    Rep.    965. 

Instruction;  agency;  knowledge  of  principal:  See  Novelty  M.  Co.  v. 
Heinzerling,  39   Wasli.   244.   SI   Pac.  Rep.   742. 

In.struction  an  to  agency  in  Nuperintending  w'ork:  See  Novelty  M. 
Co.   v.   Heinzerling,   3;t    Wasli.   244,   SI    Pac.   Rep.   742. 

Instruction;  comment  l>y  court  on  evidence:  See  Drumheller  v. 
American  S.  Co.,  30  Wash.  530,  71  Pac.  Rep.  25. 

Instructions  not  excepted  to,  binding:  See  Dyer  v.  Middle  Kittitas 
Irr.  Dist.,  40  Wash.  238,  82  Pac.  Rep.  301. 

^  See  §  9,  and  §§  638  et  seq.,  ante. 

Colorado.  Under  Rev.  Stats.,  ch.  liv,  427,  the  chancery  practice  was 
Observed:  Clear  Creek  M.  Co.  v.  Root,  1  Colo.  374. 


§§  876, 877  mechanics'  liens.  732 

the  code,  in  such  case,  grantmg  or  refusing  the  demand 
for  a  jury  trial  is  entirely  within  the  discretion  of  the 
court.-® 

§  876.     Same.     Verdict.     Setting    aside    verdict.     In    an 

action  to  foreclose  a  mechanic's  lien,  the  court  may  properly 
set  aside  a  judgment  entered  on  the  verdict  of  the  jury, 
where  it  appears  that  it  had  been  inadvertently  entered  by 
the  clerk  without  judicial  sanction,  when  other  issues  of  fact 
remain  to  be  determined  by  the  court,  and  the  court  may 
proceed  with  the  trial  of  such  issues,  and  may  adopt  an 
advisory  verdict  of  the  jury  upon  the  special  matter  therein 
involved,  make  findings  as  to  the  other  issues,  and  have  a 
new  judgment  entered. ^^ 

§  877.  New  trial.  An  express  limitation  of  the  ground 
upon  which  an  order  granting  a  defendant  a  new  trial  was 
made  is  as  to  the  insufficiency  of  the  claim  of  lien,  and  pre- 
vents the  defendant  from  contending  that  the  order  might 
have  been  granted  upon  the  ground  that  the  evidence  was 
insufficient  to  support  the  findings.^^ 

2«  Curnow  v.  Happy  Valley  B.  G.  &  H.  Co.,  68  Cal.  262,  264,  9  Pac. 
Rep.  149. 

See  §§  869  et  seq.,  ante. 

Idaho.  Jury  trial  allowable  where  there  is  a  demand  for  damages 
in  cross-complaint  or  counterclaim,  at  law:  See  Robertson  v.  Moore,  10 
Idaho  115,  77  Pac.  Rep.  218. 

Montana.  Jury  discretionary  In  action  to  foreclose  lien:  Mochon 
V.  Sullivan,  1  Mont.  470;  Simonton  v.  Kelly,  1  Mont.  483. 

Washington.  Wheeler  v.  Ralph,  4  Wash.  617,  630,  30  Pac.  Rep.  709. 
See  Installment  etc.  Loan  Co.  v.  Wentworth,  1  Wash.  467,  25  Pac.  Rep. 
298.  The  interposition  of  a  legal  defense,  such  as  damages  for  breach 
of  contract,  did  not  give  a  right  to  a  jury  trial:  Dearborn  Foundry 
Co.  V.  Augustine,  5  Wash.  67,  31  Pac.  Rep.  327. 

='  Cummings  v.  Ross,  90  Cal.  68,   72,   27  Pac.  Rep.  62. 

Idaho.  The  court  may  set  aside  the  verdict:  Idaho  &  O.  L.  Co.  v. 
Bradbury,   132  U.  S.  509,  bk.   33  L.  ed.   433,  10  Sup.  Ct.  Rep.   177. 

=»  McGinty  v.  Morgan,  122  CaL  103,  54  Pac.  Rep.  392. 

New  trial.  Section  1190  of  the  Code  of  Civil  Procedure  makes  the 
provisions  of  Part  II,  §  656,  same  code,  generally  applicable:  See 
Townley  v.  Adams,   118  Cal.  382,  50  Pac.  Rep.  550. 

A  new  trial  is  properly  granted  in  an  action  by  the  contractor, 
when  the  trial  court  refuses  to  continue  the  trial  until  the  cases 
pending  for  the  foreclosure  of  subclaimants'  liens,  pleaded  in  the 
answer,  have  been  determined:  Macomber  v.  Bigelow,  123  Cal.  532, 
56   Pac.   Rep.   449. 

See  Kerr's  Cjc.  Code  Civ.  Proc.,  S§  656,  1190,  and  notes. 


733  TRIAL  AND   PRACTICE.  §§  878, 879 

§  878.  Nonsuit.  When  sustained  upon  appeal.  The 
action  of  the  trial  court  in  granting  a  nonsuit  will  be  sus- 
tained upon  appeal,  no  matter  whether  the  proper  grounds 
were  stated  by  the  moving  party  or  not,  where  any  valid 
ground  for  sustaining  such  action  can  be  seen  by  the  appel- 
late court. -^ 

§  879.  Same.  When  not  granted.  Where  there  is  a  con- 
flict in  the  evidence,  if  there  is  any  evidence  tending  to  sus- 
tain the  plaintiff's  case,  the  motion  for  a  nonsuit  should  not 
be  granted. ^'^    Thus  — 

Void  contract.  Where  the  conflict  relates  to  the  terms 
of  the  contract  upon  which  the  action  is  brought,  and  as 
to  its  validity,  for  the  purpose  of  the  motion,  the  court  has 
no  right  to  assume  that  there  were  provisions  in  the  contract 
which  made  it  void.^° 

For  a  general  statement  as  to  the  method  of  procedure  on  motion 
for  a  new  trial,  see  Williams  v.  Hawley,  144  Cal.  97,  99,  77  Pac.  Rep. 
762. 

Statement  on  motion  for  ne%v  trial;  specifications  of  insufficiency  of 
evidence:  See  American  Type  F.  Co.  v.  Packer,  130  Cal.  459,  461,  62  Pac. 
Rep.   744. 

Order  for  new  trial;  laying  sidewalk:  See  Fllnn  v.  Mowry,  131  Cal. 
481,   487,   63   Pac.   Rep.   724.   1006. 

New  trial  granted;  lien  for  street-improvement:  See  PI  inn  v. 
Mowry,   131  Cal.   481,   487,   63  Pac.  Rep.   724,   1006. 

Order  granting  ne^v  trial;  attorneys'  fees:  See  Hooper  V.  Fletcher, 
145  Cal.  375,  379,  79  Pac.  Rep.  418. 

Appeal  from  order  denying  new  trial;  ^vliat  considered:  See 
Schroeder  v.  Pissis,   128  Cal.   209,   212,   60  Pac.   Rep.   758. 

What  considered  upon  appeal  from  order  granting  new  trial;  no 
specification  of  insuflaciency  of  evidence;  request  of  owner;  satisfac- 
tion of  superintendent  of  streets;  lien  of  assignee  of  contract:  See  De 
Haven  v.  McAuley,   138  Cal.  573,   575,  72  Pac.  Rep.  152. 

Colorado.  See  Bradbury  v.  Butler,  1  Colo.  App.  430,  29  Pac.  Rep. 
463. 

Right  to  lien:  Bradbury  v.  Butler,  supra. 

Reopening  case  without  notice  to  subsequent  encumbrancers:  See 
Sprague  I.  Co.  v.  Mouat  L.  &  I.  Co.,  14  Colo.  App.  107,  60  Pac.  Rep. 
179,    184. 

Montana.  See  Bardwell  v.  Anderson,  18  Mont.  528,  46  Pac.  Rep. 
443. 

Washington.  Vacation  of  judgment  and  entry  of  new  judgment, 
on  motion  for  new  trial:  See  Griffith  v.  Maxwell,  19  Wash.  614,  54  Pac. 
Rep.  35,  s.  c.  20  Wash.  403,  55  Pac.  Rep.  571. 

-'»  Snell  V.  Payne,  115  Cal.   218,   222,  46  Pac.   Rep.   1069. 

Arizona.  Directed  verdict;  cause  of  action  not  stated:  See  McPher- 
son  v.  Hattich    (Ariz.,   March   30,   1906),   85   Pac.   Rep.   731. 

30  Pacific  Mut,  L.  Ins.  Co.  v.  Fisher,  109  Cal.  566,  569,  42  Pac.  Rep 
154. 


§§  880-882  mechanics'  liens.  734 

§  880.  Same.  Statute  of  limitations.  When  the  statute 
of  limitatious  is  pleaded  as  to  the  first  two  counts  of  the 
complaint,  and  not  pleaded  as  to  a  third  count,  upon  a  motion 
for  nonsuit  upon  the  ground  that  the  "  claim  "  is  barred  by 
the  statute,  such  objection  cannot  be  urged.  The  word 
"  claim,"  used  in  the  grounds  of  the  motion,  includes  the 
whole  claim  set  forth  in  the  three  counts  of  the  complaint, 
and  the  action  in  its  entirety  should  not  be  held  to  be 
barred.^^ 

§  881.  Same.  Time  of  filing  claim.  Where  certain  work 
may  not  have  been  contemplated  by  the  contract,  if  it  never- 
theless appears  that  it  was  done  under  the  direction  of  the 
agent  of  the  owner,  and  the  obligations  of  the  contractor 
to  the  owner  were  not  extinguished  until  certain  debris  were 
removed,  there  is  some  evidence  tending  to  show  that  the 
work  was  not  actually  completed,  for  the  purpose  of  filing 
the  lien,  and  a  nonsuit  for  failure  to  file  the  claim  of  lien 
in  time  should  not  be  granted,  even  where  such  evidence 
consists  largely  of  conclusions  introduced  without  objection 
on  that  ground.^^ 

§  882.  Same.  Excessive  claim.  Forfeiture.  And  where 
the  motion  for  nonsuit  was  made  upon  the  ground  that 
plaintiff  "  knowingly  and  wilfully  filed  a  notice  of  lien  for 
more  than  he  was  entitled  to,  and  sought  in  the  action  to 
recover  an  amount  in  excess  of  the  amount  actually  due," 
it  does  not  state  a  ground  of  forfeiture,  as  wilfully  includ- 
ing in  his  notice  to  the  owner  material  not  furnished  for 
the  property,  as  set  forth  in  section  twelve  hundred  and 
two,^^  and  the  motion  for  nonsuit  could  not,  therefore,  prop- 
erly be  granted.^* 

»i  Castagnino  v.  Balletta,  82  Cal.  250,  262,  23  Pac.  Rep.   127. 

»2  Gordon  H.  Co.  v.  San  Francisco  &  S.  R.  R.  Co.,  86  Cal.  620,  622,  25 
Pac.   Rep.    125. 

33  Kerr's  Cyc.  Code  Civ.  Proc,  §  1202. 

3*  Schallert-Gq,nahl.L.  Co.  v.  Neal,  91  Cal.  362,  366,  27  Pac.  Rep.  743 
(the  motion  was  not  sufficient,  whether  aimed  at  the  notice  or  claim. 
The  language  of  the  opinion,  however,  is  not  very  clear  upon  tills 
point). 


735  TRIAL    AND    PRACTICE.  §§  883,  884 

§  883.  Same.  Admission  in  answer.  Contract.  A  non- 
suit should  not  be  granted,  where  there  is  an  admission  in 
the  answer  as  to  the  making  of  the  contract,  and  the  plain- 
tiff does  not  offer  evidence  as  to  the  terms  of  the  contract, 
or  evidence  to  show  that  there  was  any  contract. ^^ 

§  884.  Same.  Common  counts.  Express  contract.  Where 
the  evidence  tends  to  show  that  the  architect  accepted  the 
building,  and  all  conditions  precedent  have  been  complied 
with  by  plaintiff,  and  the  amount  due  alone  remained  to 
be  paid,  in  an  action  upon  the  common  counts,  where  the 
special  contract  is  offered  in  evidence,  a  nonsuit  should  not 
be  granted  for  a  disagreement  between  the  allegations  and 
the  proof.^^ 

Agreed  price.  But  where  the  complaint  and  claim  of  lien 
averred  an  agreed  price'  for  the  work,  and  the  evidence 
showed  that,  except  as  to  one  small  item,  there  was  no  agreed 
price,  a  nonsuit  should  be  granted,  as  this  shows  a  failure 
to  comply  with  a  statutory  requisite. ^^ 

»  Schmid  v.  Busch,  97  Cal.  184,  187,  31  Pac.  Rep.  893. 
»«  Castagnino  v.  Balletta,  82  Cal.   250.   259,   23  Pac.  Rep.   127. 
See    "Complaint,"    §§672    et   seq.,    ante;    "Variances,"    §§836    et    seq., 
ante. 

"  Wagner  v.  Hansen,  103  Cal.   104,  107,  37  Pac.  Rep.  195. 


§  885  mechanics'  liens.  736 


CHAPTER    XLI. 

FINDINGS. 

§  885.  Findings.     Scope  of  chapter. 

§  886.  Issues  to  be  found  upon. 

§  887.  Finding  to  cover  entire  issue. 

§  888.  Same.     Defective  findings. 

§  889.  Ultimate  facts  to  be  found. 

§  890.  Immaterial  issues. 

§  891.  Same.     Knowledge  of  owner.     Notice  of  non-responsibiflty. 

§  892.  Segregating  items  of  contract  price. 

§  893.  Contradictory  findings. 

§  894.  Findings  in  consolidated  action. 

§  895.  Findings  of  fact  and  conclusions  of  law. 

§  896.  Same.    Void  contract. 

§  897.  Findings  sufficient  to  support  judgment. 

§  898.  Agency. 

§  899.  Same.     Insufficient  finding. 

§  900.  Same.     Request  of  owner. 

§  901.  Same.     Void  contract. 

§  902.  When  findings  may  not  be  attaclted. 

§  885.  Findings.^  Scope  of  chapter.  The  subject  of  find- 
ings will  not  be  discussed  in  detail.  Only  those  rules  pecu- 
liar to  or  specially  illustrating  the  matter  treated  in  this 
work  will  be  referred  to,  in  accordance  with  the  general  plan 

1  See  "Demurrer,"  §§728  et  seq.,  ante;  "Evidence,"  §§764  et  seq., 
ante;  "Practice.  In  General,"  §§  864  et  seq.,  ante;  "Variances,"  §§  835 
et  seq.,   ante. 

The  provisiou  of  §  034,  that  findings  may  be  waived  by  the  several 
parties  to  an  issue.  Includes  all  parties,  and  applies  to  infants,  as 
well  as  to  adults:  Western  L.  Co.  v.  Phillips,  94  Cal.  54,  56,  29  Pac. 
Rep.    328. 

See  Kerr's*  Cye.  Code  Civ.  Proc.,  §  634,  and  note. 

As  to  extent  of  land  for  convenient  use  and  occupation,  see  "  Com- 
plaint,"  §§  717   et  seq.,  ante. 

As  to  finding  upon  inistalves  in  claim,  and  bona  fide  purchasers, 
see  Kerr's  Stats,  and  Aindts.  1906-07,  Code  Civ.  Proc,  §  1203,  p.  482; 
and  §§  412  et  seq.,  ante. 

Findings  upon  consolidation:   See  §§  869   et  seq.,  ante. 

PreNuiuptions  in  favor  of  findings,  appeal:  See  §  976,  post. 

Wasiiiugton.  Finding's  of  fact  and  law  held  not  necessary  in  an 
equitable  action  to  foreclose  lien:  Kilroy  v.  Mitchell,  2  Wash.  407, 
26  Pac.  Rep.  865. 


737  FINDINGS.  §  886 

of  treatment  of  pleadings  and  practice  already  adverted  to 
in  the  chapter  on  complaint.^ 

§  886.  Issues  to  be  found  upon.  The  court  should  find 
upon  all  the  material  issues.''    Thus — ■ 

Proper  defense.  Notice  of  action.  In  an  action  upon  a 
bond,  where  the  answer  denied  that  the  plaintiff  properly- 
defended  the  actions  brought  to  foreclose  liens  of  subclaim- 
ants,  and  also  denied  that  the  defendants  had  any  notice  of 
the  pendency  of  these  actions,  the  issues  were  material,  and 
should  have  been  passed  upon."* 

Liens  paid  by  owner.  In  a  suit  to  foreclose  a  contractor's 
lien,  there  should  be  findings  as  to  the  issue  of  the  moneys 
alleged  to  be  paid  to  the  subclaimants  upon  valid  liens  by 
the  owner  in  consideration  of  an  assignment  of  such  subliens.' 

Priorities.  The  fact  of  want  of  notice  of  a  prior  unre- 
corded mortgage  should  be  found,  to  give  priority  over  it  to 
a  subsequent  mechanic's  lien.*' 

Use  of  materials.  The  findings  must  show,  in  an  action 
to  foreclose  a  material-man's  lien,  that  the  materials  were 
furnished  to  be  used  in  the  building,  and  were  actually  so 
used.^ 

^  See  §  670,  ante. 

Fixture  as  part  of  building;;  finding:  See  Stevenson  v.  Woodward, 
3  Cal.  App.   754,   86  Pac.   Rep.   990. 

As  to  fixtures  as  appurtenances,  see  Kerr's  Cyc,  Civ.  Code,  §  660, 
note  pars   3-148. 

Wyoming.  Finding  properly  identifying  land  and  liouse:  See  Big 
Horn  L.  Co.  v.  Davis,   14  Wyo.   455,   85   Pac.  Rep.   1048,   84  Id.   900. 

^  Failure  to  find  upon  material  issue  is  error:  Reese  v.  Bald  Mt. 
Consol.  G.  M.  Co.,  133  Cal.  285,  288,  65  Pac.  Rep.  578  (agency;  before 
amendment  of  1907  to  Kerr's  Cyc.  Code  Civ.  Proc,  §  1183). 

Idaho.  Necessary  for  court  to  find  amount  of  land  necessary 
for  convenient  use  and  occupation,  and  may  call  witnesses  therefor: 
See  Robertson  v.  Moore,   10  Idaho   115,   77  Pac.  Rep.   218,   222. 

*  Ernst  V.  Cummings,  55  Cal.  179,   183. 

=  Shaw  V.  Wandesford,  53  Cal.  300,  301.  See  Billings  v.  Everett,  52 
Cal.  661;  Baggs  v.  Smith,  53  Cal.  88;  O'Connor  v.  Fraslier,  53  Cal.  435; 
Taylor  v.  Reynolds,  53  Cal.  686;  Mahoney  v.  Braverman,  54  Cal.  565, 
571;  Knight  v.  Roche,  56  Cal.   15,   25. 

»  Root  V.   Bryant,   57   Cal.   48,   49. 

'  Patent  Brick  Co.  v.  Moore,  75  Cal.  205,  211,  16  Pac.  Rep.  890.  See 
Holmes  v.  Richet,  56  Cal.  307,  310,  38  Am.  Rep.  54;  Silvester  v.  Coe 
Quartz  M.  Co.,  80  Cal.  510,  513,  22  Pac.  Rep.  217:  Bewick  v.  Muir,  83 
Cal.  368,  370,  23  Pac.  Rep.  389,  83  Cal.  373,  23  Pac.  Rep.  390;  Gordon  H. 
Co.  v.  San  Francisco  &  S.  R.  R.  Co.,  86  Cal.  620,  25  Pac.  Rep.  125;  Cohn 
V.  Wright,  89  Cal.  86,  88,  26  Pac.  Rep.  643;  Roebling  Sons  Co.  v.  Bear 
Mech.  Liens —  47 


§  887  mechanics'  liens.  738 

Promise  to  pay.  Honey  due.  In  an  action  by  the  owner's 
laborers,  the  court  must  find  upon  the  express  promise  to 
pay  alleged,  and  that  a  sum  of  money  was  due  and  unpaid 
at  the  commencement  of  the  action.^ 

Performance.  Substantial  performance  of  the  original 
contract  should  be  found  as  a  fact,  to  sustain  the  judgment 
for  the  contract  price,  less  damages  for  failure  to  perform 
the. contract,  in  favor  of  the  contractor.^ 

Void  contract.  Value.  In  an  action  by  subclaimants 
under  a  void  statutory  contract,  there  should  be  a  finding 
as  to  the  value  of  the  labor  done  and  materials  furnished.^" 

§  887.  Finding  to  cover  entire  issue.  The  finding  of  the 
court  should  cover  the  whole  of  the  issue. ^^     Thus  — 

Date  of  completion.  A  finding  that  a  building  was  com- 
pleted "  on  or  aliout  "  a  date  specified  in  the  answer  is  insuf- 
ficient to  cover  the  issue  as  to  the  date  of  completion,  when 
it  ?:s  material  to  fix  the  proper  time  within  which  to  file  the 
claim  of  lien.^^ 

Prevention  of  performance.  A  finding  that  the  defendant 
entirely  suspended  work  under  the  provisions  of  the  contract 
is  not  a  finding  of  prevention  of  performance.^^ 

VaUey  Irr.  Co.,  99  Cal.  488,  490,  34  Pac.  Rep.  80;  Hamilton  v.  Delhi  M. 
Co.,  118  Cal.  148,  153,  154,  50  Pac.  Rep.  378;  Stimson  v.  Los  Angeles  T. 
Co.,  141  Cal.  30,  32,  74  Pac.  Rep.  357;  Bennett  v.  Beadle,  142  Cal.  239, 
242,  75  Pac.  Rep.  843;  Tabor  v.  Armstrong-,  9  Colo.  285,  289,  12  Pac. 
Rep.  157;  Hill  v.  Bowers,  45  Kan.  592,  593,  26  Pac.  Rep.  13;  The  James 
H.  Prentice,  36  Fed.  Rep.  782;  Gordon  v.  Canal  Co.,  1  McAl.  C.  C.  514, 
522. 

See  notes  64  Am.  Dec.  679;  79  Am.  Dec.  273. 

See  also  "Appeal,"  §980,  post. 

s  Bewick  v.  Muir,  83  Cal.  368,  371,  23  Pac.  Rep.  389,  83  Cal.  373,  23 
Pac.    Rep.    390. 

»  Perry  v.  Quackenbush,  105  Cal.  299,  306,  38  Pac.  Rep.  740. 

"  Booth  V.  Pendola,  88  Cal.  36,  41,  23  Pac.  Rep.  200,  24  Id.  714,  25 
Id.    1101. 

Idaho.  Failure  to  find  upon  all  material  issues:  See  Sandstrom  v. 
Smith    (Idaho,  June  20,  1906),   86  Pac.  Rep.   416. 

Court  may  approve  and  adopt  findings  of  jury  in  suit  to  foreclose 
lien,  it  being  an  action  in  equity:  Sandstrom  v.  Smith,  supra. 

"  General  principles  of  construction  of  findings  set  forth :  See 
McClain  v.  Hutton,  131  Cal.  132,  143,  61  Pac.  Rep.  273,  63  Id.  182,  622. 

Finding  as  to  completion  of  building,  construed:  See  Jones  V. 
Kruse,   138  Cal.  613,   616,  72  Pac.  Rep.  146. 

"  Cohn  V.  Wright,   89   Cal.   86,   88.    26   Pac.   Rep.   643. 

^  Cox  V.  McLaughlin,   63  Cal.   196,   206. 


739  FINDINGS.  §§  888, 889 

Conditional  compensation.  Where  the  answer  raises  an 
issue  that  the  plaintiff  was  not  to  receive  any  compensa- 
tion unless  the  building  was  erected,  which  depended  upon 
whether  he  procured  a  license  for  the  selling  of  liquor 
therein,  the  building  being  abandoned  by  reason  of  inability 
to  procure  such  license,  and  the  court  finds  that  there 
was  no  agreement  between  plaintiff  and  defendants  as  to  the 
amount  to  be  paid  plaintiff",  this  is  not  a  finding  as  to  the 
special  defense  set  up,  but  relates  merely  to  the  amount.^* 

Completion  of  building.  Abandonment.  Where  the  claim 
was  filed  the  day  before  the  completion  of  the  buiUliiig,  and 
the  court  finds  that  prior  to  the  commencement  of  the  action 
the  carpenters  finished  their  work,  but  that  the  building 
"  was  not  then,  and  is  not  now,  completed,"  and  "  that  neither 
of  the  plaintiff's,  at  the  time  of  furnishing  the  materials,  knew 
that  it  was  not  the  intention  "  of  the  owner  "  to  complete 
the  building,  and  leave  it  in  an  unfinished  state,"  the  findings 
are  not  equivalent  to  a  finding  that  the  original  purpose  of 
the  owner  was  to  construct  the  building  in  part,  or  that  the 
original  purpose  to  finish  it  was  abandoned.^^ 

§  888.  Same.  Defective  findings.  A  finding  is  not 
defective,  in  failing  to  show  whether  improvements  made 
were  of  such  a  character  that  they  imixjscd  a  lien  on  the 
premises  under  a  clause  of  a  lease  providing  for  their  removal 
under  certain  conditions,  referring  to  the  same,  where  it  is 
found  that  the  additions,  alterations,  and  repairs  in  ques- 
tion were  made  to  and  upon  buildings  and  other  structures 
situated  on  the  leased  premises,  the  finding  thus  showing 
that  the  improvements  were  upon  property  which  is  declared 
subject  to  lien  by  statute,  and  was  sufficieut.^'^ 

§  889.  Ultimate  facts  to  be  found.  Probative  facts  should 
not  be  found;  and  a  finding  of  probative  facts  will  not  gen- 
erally control,  limit,  or  modify  a  finding  of  the  ultimate  fact; 
but,  when  the  ultimate  fact  is  found,  no  finding  of  probative 
facts,  which  may  tend  to  establish  that  the  ultimate  fact  was 

"  Ehlers  v.   Wannack,    118  Cal.   310,   314,  50  Pac.   Rep.   433. 
^  Schwartz  v.  Knight,  74  Cal.  432,  435,   16  Pac.  Rep.  235. 
"  Evans  v.  Judson,   120   Cal.   282,   285,   52   Pac.  Rep.   585. 


§  889  mechanics'  liens.  740 

found  against  the  evidence,  can  overcome  the  principal  find- 
jjjg  17  rpj^g  ultimate  fact,  or  facts  from  which  the  ultimate 
fact  is  necessarily  deducible,  must  be  found.    Thus  — 

Completion.  The  ultimate  fact  of  completion,  or  of  trifling 
imperfection,  or  of  continuance  of  the  work  during  a  certain 
period,  or  cessation  from  work  for  thirty  days,  should  be 
found.^^ 

Substantial  performance.  But  a  finding  of  trivial  defect, 
such  as  that  some  small  places  in  the  house  were  not  properly 
grained  and  finished,  and  that  the  cost  of  properly  finish- 
ing them -would  not  be  more  than  five  dollars,  or  that  plain- 
tiffs substantially  complied  with  the  contract  and  completed 
the  work,  is  consistent  with  a  finding  that  the  plaintiff  sub- 
stantially performed  his  contract,^^ 

Invalidity  of  contract.  Where  facts  are  found,  showing 
the  invalidity  of  the  statutory  original  contract,  it  is  equiv- 
alent to  finding  that  there  was  no  original  contract,  and  that 
no  labor  was  done  or  materials  furnished  under  it.^" 

The  issue  of  damages  for  breach  of  a  statutory  original 
contract  is  disposed  of  by  a  finding  showing  the  statutory 
original  contract  to  be  void.^^ 

"  Perry  v.  Quackenbush,  105  Cal.  299,  305,  38  Pac.  Rep.  740  (finding 
of  complete  performance). 

Findings  supported  by  e^-idence:  See  Sims  v.  Petaluma  G.  L.  Co., 
131  Cal.  656,  660,  62  Pac.  Rep.  300,  63  Pac.  Rep.  1011  (due  perform- 
ance; reasonable  value);  Boothe  v.  Squaw  Springs  W.  Co.,  142  Cal.  573, 
576,  76  Pac.  Rep.  385  (extras;  modification  of  contract);  Union  Ij.  Co. 
V.  Simon  (.Cal.  App.,  March  13,  1906),  89  Pac.  Rep.  1077,  1078,  1081  (land 
for  convenient  use  and  occupation;   hospital). 

E^videnee  insufficient  to  support  finding;  compensation  of  architect: 
See  Pitzhugh  v.   Mason,   2  Cal.  App.   220,   224,  83  Pac.   Rep.   282. 

Evidence  conflicting;  gas  plant:  See  Sims  v.  Petaluma  G.  L.  Co., 
131  Cal.   656,   63  Pac.  Rep.   1011,   reversing  s.  c.  62  Pac.  Kep.   300. 

Montana.  Evidence  held  to  support  findings:  Western  I.  W.  v. 
Montana  P.  &  P.  Co.,  30  Mont.  550,  77  Pac.  Rep.  413,  417  (single  con- 
tract on  an  open  continuous  account;  falling  within  the  rule  an- 
nounced in  Helena  S.  H.  &  S.  Co.  v.  Wells,  16  Mont.  65,  40  Pac.  Rep. 
78,  and  distinguisliing  A.  M.  Holter  H.  Co.  v.  Ontario  M.  Co.,  24  Mont. 
184,  61  Pac.  Rep.  3). 

i«  Marble  L,.  Co.  v.  Lordsburg  H.  Co.,  96  Cal.  332,  3o4,  31  Pac.  Rep. 
164. 

"  Harlan   v.   Stufllebeem,    87   Cal.   508,    510,    25   Pac.   Rep.   686. 

^  Rebman  v.  San  Gabriel  V.  L.  &  W.  Co.,  95  Cal.  390,  396,  30  Pac. 
Rep.  564. 

See   §§   319  et  seq.,  ante. 

=»  Rebman  v.  San  Gabriel  V.  L.  &  W.  Co.,  95  Cal.  390,  396,  30  Pac. 
Rep.    564. 

See  §§  319  et  seq.,  ante. 


741  FINDINGS.  §  890 

Estoppel.  And  so  where  the  court  does  not  find  upon  a 
plea  of  estoppel  as  to  falsely  receipted  bills  presented  to  the 
owner,  but  finds  that  the  owner  did  not  rely  upon  the  same, 
it  is  sufficient.-- 

§  890.  Immaterial  issues.  The  court  need  not  find  upon 
immaterial  issues,  such  as  a  claim  for  attorneys'  fees  upon 
foreclosure  of  the  lien ;  -^  nor  upon  issues  not  made  by  the 
pleadings,  nor  upon  an  issue  rendered  immaterial  by  the 
findings  made  upon  other  issues ;  -*  nor  upon  matters  outside 
of  the  issues.-'^ 

Contract.  A  finding  of  a  contract  with  the  owner,  not 
pleaded  in  an  action  of  a  subelaimant  under  a  non-statutory 
original  contract,  is  outside  of  the  issues.-*^ 

Amount  due.  Where  the  plaintiff,  a  subcontractor,  fails 
to  state  that  anything  was  due  from  the  owner  to  the  con- 
tractor at  the  time  of  filing  the  claim,  or  upon  notice  to  the 
owner,  and  thus  fails  to  state  a  cause  of  action,  a  finding 
that  the  oAvner  had  notice  was  without  the  issues.-^ 

Another  action  pending.  When  the  answer  to  the  com- 
plaint of  the  contractor  in  indebitatus  assumpsit  does  not 
plead  another  action  pending,  which  had  been  first  brought 
by  the  subcontractor  of  the  plaintiff  against  the  defendant 
to  recover  for  a  foundation  built  pursuant  to  the  contract,  a 
finding  that  such  action  was  pending  is  outside  of  the  issues.-* 

2=  Washburn  v.  Kahler,   97  Cal.   58,  60,   31  Pac.  Rep.  741. 

23  Clancy  v.  Plover,   107  Cal.   272,   274,  40  Pac.  Rep.   394. 

2*  Finding  outside  issiie.s;  offsets  and  counterclaims  for  labor  and 
materials  of  subclaimants:  See  Gamache  v.  South  School  Dist.,  133 
Cal.  145,  148,  65  Pac.  Rep.  301.     See  Green  v.  Chandler,  54  Cal.  626. 

In  a  suit  to  forecIoNe  MUbeoutractor'H  lien,  flntlinjf;  unneoeNMury  as 
to  negligence  o£  contractor  in  carrying  out  void  original  contract  by 
original  contractor:  See  Macomber  v.  Bigelow,  126  Cal.  9,  13,  58  Pac. 
Rep.   312. 

Unnecessary  flnding;  need  not  be  supported  by  tlie  evidence:  Union 
S.  M.  Works  V.  Dodge,   129  Cal.   390,   397    (consideration). 

Unsupported  findinj?  rendered  immaterial:  Fitzhugh  v.  Mason,  2 
Cal.   App.   220,  224,   83   Pac.   Rep.   282    (arcliitect's   compensation). 

No  evidence  as  to  fraud  introduced;  no  finding  necessary:  See 
Macomber  v.  Bigelow,  126  Cal.  9,   13,   58  Pac.  Rep.  312. 

•^  So  held  in  reference  to  notice  of  non-responsibility  under  §  1192, 
Kerr's  Cyc.  Code  Civ.  Proc.  (before  amendment  of  1907):  Buell  v. 
Brown,  131  Cal.   158,   162,  63  Pac.  Rep.  167. 

26  Gibson  v.  Wneeler,  110  Cal.  243.  246,  42  Pac.  Rep.  810. 

"  Rosenkranz   v.    Wagner,    62    Cal.    151,    154. 

»  Griffith  v.  Happersberger,   86  Cal.   605,   612,   25  Pac.  Rep.   137,   487. 


§  891  mechanics'  liens.  742 

Performance.  "Where  evidence  as  to  non-performance  of 
the  contract  and  guaranteeing  the  performance  of  the  con- 
tract was  introduced  in  evidence,  but  no  issue  was  made  as 
to  these  facts  by  the  pleadings,  a  finding  thereon  would  be 
outside  of  the  issues.-" 

Completion  of  work.  An  averment,  in  the  answer,  of  the 
date  of  completion  of  the  work  of  excavation  presents  no 
material  issue,  where  the  work  of  excavating  was  simply  a 
part  of  the  work  under  the  contract,  and  requires  no  find- 
ing, when  the  findings  made  show  that  there  was  no  cessa- 
tion from  work,  and  that  the  construction  of  the  building 
was  continuously  carried  on  to  completion  and  the  liens  were 
filed  within  the  proper  time  thereafter.^" 

Facts  admitted.  Where  a  fact  is  admitted  in  the  plead- 
ings, a  finding  thereon  is  unnecessary,  and  may  be  treated 
as  surplusage. ^^ 

§  891.  Same.  Knowledge  of  owner.  Notice  of  non- 
responsibility.  A  finding  outside  of  the  issues  must  be  dis- 
regarded ;  and  when,  in  a  suit  to  enforce  the  lien  of  a  miner, 
the  complaint  contains  no  allegation  that  any  building  or 
other  improvement  was  constructed  upon  the  lands  owned  by 
a  mining  company,  with  its  knowledge,  a  finding  that  at  the 
time  of  the  contract  between  the  claimant  and  his  employer, 
and  during  the  time  of  the  performance  of  the  labor,  the 
company  had  full  notice  and  knowledge  of  such  contract, 
and  of  all  work  done  by  the  claimant  thereunder,  is  outside 
of  the  issues  made  by  the  pleadings,  and  under  section  eleven 
hundred  and  ninety-two,  a  decree  foreclosing  the  lien  is  not 
supported  thereby. ^^  Likewise  a  finding  is  outside  of  the 
issues,  when  the  complaint  alleges  a  contract  made  with  the 
owner,  through  its  agent,  the  employer,  who  contracted  for 
labor  in  a  mine,  and  where  the  finding  is  applicable  to  a  case 

=»  KeUey  v.  Plover,   103  Cal.   35,   37,   36  Pac.   Rep.   1020. 

30  Macomber  v.   Big-elow,   126   Cal.   9,   13,   58  Pac.   Rep.   312. 

"  West  Coast  L.  Co.  v.  Apfleld,  86  Cal.  335,  342,  24  Pac.  Rep.  993 
(consent  of  owner). 

Finding  upon  issues,' facts  admitted,  unnecessary:  Orlandl  v.  Gray, 
125  Cal.   372,  58  Pac.  Rep.   15    (void  contract;  fraud). 

3=  Reese  v.  Bald  Mt.  Consol.  G.  M.  Co.,  133  Cal.  285,  65  Pac.  Rep. 
678   (under  Kerr's  Cyc.  Code  Civ.  Proc.,  before  amendment  of  1907). 


743  •  FINDINGS.  §§892,893 

in  which  there  was  no  contract  with  the  owner  in  any  manner 
whatsoever,  but  in  which  the  owner  is  liable,  as  a  penalty  for 
not  giving  notice  of  non-responsibility.^^ 

§  892.  SegTegating  items  of  contract  price.  "Where  a  con- 
tract provided  a  fixed  price  for  a  concrete  bulkhead,  and 
also  expressly  provided  that  any  extra  concrete-work  in 
a  wall  was  to  be  charged  for  at  a  certain  rate,  and  the  court 
finds  that  under  it  the  defendant  became  indebted  to  the 
contractors  in  a  sum  certain,  the  finding  is  sufficient,  without 
segregating  the  items  for  contract  price  and  extra  work, 
and  finding  specifically  as  to  each.^* 

§  893.  Contradictory  findings.  The  findings  are  not  con- 
tradictory because  stating  the  date  of  completion  of  the 
building,  and  also  that  it  Was  never  actually  completed,  when 
the}'  show  that  the  work  ceased  on  a  certain  day  and  such 
cessation  continued  for  more  than  thirty  days,  which  facts 
constituted  a  completion,  under  section  eleven  hundred  and 
eighty-seven.^'^ 

Party  furnishing  materials.  Where  the  court  finds  that 
certain  materials  were  furnished  to  the  owner  by  the  claim- 
ant, to  be  used  in  the  construction  of  a  dwelling-house,  the 
finding  is  consistent  with  another  finding,  that  they  were 
partly  furnished  by  a  third  party,  and  that  such  third  party 

^  Reese  v.  Bald  Mt.  Consol.  G.  M.  Co.,  3  33  Cal.  285.  288,  65  Pac.  Rep. 
578   (before  amendment  of  1907  to  §  1192,  Kerr's  Cyc.  Code  Civ.  Proc.). 

5*  Gray  v.  Wells,  118  Cal.  11,  17,  50  Pac.  Rep.  23. 

3=  Marble  L.   Co.  v.  Lordsburg  H.  Co.,   96  Cal.   332,  31  Pac.  Rep.   164. 

Con.sistency  of  findinti^s.  As  to  payment:  Petersen  v.  Shaln  (Cal.), 
33  Pac.  Rep.   1086. 

As  to  performance  and  )s;uaranty;  Gray  v.  Wells,  118  Cal.  11,  14,  16, 
50   Pac.  Rep.   23. 

As  to  uncertain  and  liypfitlictical  findings,  and  surplusage  (per- 
formance),  see  Gray  v.  Wells,   lis  Cal.   11,   17,  50  Pac.   Rep.   23. 

In  a  suit  I)y  a  subcontractor  to  enforce  a  lien,  a  finding  that  the 
contractor's  work  was  improperly  done,  not  having  been  sufficiently 
objected  to,  the  contractor's  right  to  a  lien  was  not  affected  by  the 
further  finding  that  he  knew  at  the  time  he  did  the  work  that  he  was 
not  complying  with  the  original  contract:  Howe  v.  Schmidt  (Cal., 
June   22,    1907),   90  Pac.  Rep.   1056. 

Idalio.  Special  finding  inconsistent  with  general  verdict:  Brad- 
bury V.  Idaho  &  O.  L.  I.  Co.,  2  Idaho  221,  10  Pac.  Rep.  620.  See  Colo- 
rado I.  W.  V.  Riekenberg,  4  Idaho  705,   43  Pac.  Rep.  681. 


§  894  mechanics'  liens.  744 

refused  to  deliver  such  material  until  it  was  paid  for,  and 
that  thereupon  the  claimant  paid  the  third  party  for  such 
material,  and  furnished  it  according  to  their  contract  with 
the  owner. ^® 

Performance  of  contract.  And  if  the  findings  show  how 
the  contract  was  performed  by  plaintiff,  and  stated  facts 
showing  that  the  contract  was  substantially  complied  with, 
they  sufficiently  sustain  an  allegation  of  full  performance, 
notwithstanding  a  finding  that  the  contractor  had  not  paid 
all  the  bills  for  work  done  by  his  subcontractor,  as  con- 
templated by  an  unnecessary  provision  of  the  contract  for 
the  prevention  of  liens  on  public  property,  which  did  not  and 
could  not  accrue  in  favor  of  such  subcontractor  against  the 
person  creating  the  structure. ^^ 

§  894.  Findings  in  consolidated  action.  Where  a  num- 
ber of  suits  to  enforce  liens  are  consolidated,  it  is  better  to 
have  only  one  set  of  findings  in  the  consolidated  suit.  Such 
a  course  avoids  needless  repetitions  of  facts  common  to  all 
the  cases,  prevents  possible  complications  and  inconsisten- 
cies, and  is  altogether  the  clearer  and  more  orderly  method. 
The  question,  however,  has  been  said  to  be  one  of  good  taste 
and  correct  method ;  and  the  mere  fact  that  the  court  makes 
separate  findings  in  each  of  the  cases  is  not,  in  itself,  a  suffi- 
cient cause  for  reversal.^* 

s«  Avery  v.  Clark,  87  Cal.  619,  628,  25  Pac.  Rep.  919,  22  Am.  St.  Rep. 
272. 

Place  o£  delivery  of  materials;  proper  finding:  See  Continental  B. 
&  L.  Assoc.  V.  Hutton,  144  Cal.  609,  611,  78  Pac.  Rep.  21. 

3'  Griffith  V.  Happersberger,   86  Cal.   605,   613,   25  Pac.  Rep.   137,   487. 

Utah.  A  finding-  that  a  contract  was  performed  in  all  its  terms  and 
requirements  includes  all  the  conditions  and  provisions  of  the  con- 
tract; and  hence  is  a  finding  of  the  fact  that  there  was  a  compliance 
with  the  contract  requiring  the  certificate  of  the  architect  that  the 
work  was  done  to  his  satisfaction:  Culmer  v.  Caine,  22  Utah  216,  61 
Pac.  Rep.  1008,  1009. 

38  Marble  L.  Co.  v.  Lordsburg  H.  Co.,  96  Cal.  332,  333,  31  Pac.  Rep. 
164.       In  this  case  there  was  only  one  judgment. 

See  Willamette  S.  M.  L.  &  M.  Co.  v.  Los  Angeles  College  Co.,  94  Cal. 
229,  29  Pac.  Rep.  629.  In  this  case,  separate  findings  were  made  in 
each  of  four  cases,  and.  the  practice  was  hostilely  criticized,  although 
there   were   separate   judgments. 

See  "  Consolidation,"  §§  869  et  seq.,  ante. 


I 


745  FINDINGS.  §§  895, 896 

§  895.  Findings  of  fact  and  conclusions  of  law.  Where 
the  conclusions  of  law  contain  an  averment  that  as  a  conclu- 
sion from  the  preceding  findings  of  fact,  "  the  liens  of  plain- 
tiffs, and  each  of  them,  were  not  filed  within  the  time 
required  by  law,"  such  a  statement  is  not  a  finding  of  fact, 
but  is  a  conclusion  of  law.^'* 

Property  operated  as  one  mine.  And  likewise,  while  a 
specific  finding  that  property  consisting  of  several  mining 
claims  was  operated  as  a  single  mine  is  placed  among  the 
conclusions  of  law,  yet  it  is  none  the  less  a  finding  of  fact, 
and  the  circumstance  of  being  so  placed  does  not  affect  its 
character  as  such.*** 

§  896.  Same.  Void  contract.  With  regard  to  findings, 
there  is  a  wide  difference  between  a  void  contract,  or  con- 
tract declared  to  be  void  under  the  law,  and  no  contract; 
for,  in  the  former  case,  where  there  is  an  agreement  between 
competent  parties,  there  is,  ex  vi  termini,  a  contract,  and 
where  the  agreement  is  in  writing,  a  written  contract.  Hence 
where  the  evidence  shows  the  existence  of  a  contract,  the 
fact,  with  the  facts  bearing  on  its  validity,  should  be  found, 
relegating  to  the  conclusions  of  law  —  if  the  court  should 
be  of  such  opinion  —  the  legal  conclusion  that  it  is  void, 
under  section  six  hundred  and  thirty-three  of  the  Code  of 
Civil  Procedure,  requiring  the  facts  and  conclusions  of  law 
to  be  separately  stated.  And  so  where  the  written  contract, 
specifications,  and  drawings,  signed  by  all  the  parties,  were 
produced  as  evidence  from  the  recorder's  office,  and  were 
legally  unobjectionable,  findings  that  the  contract  was  not 

'»  Pierce  v.  WiUis,  103  Cal.  91,  93,  36  Pac.  Rep.  1080. 

See  "  Questions  of  Fact,"  §  827,  and  "  Questions  of  Law,"  §  828, 
ante. 

Conclusion  of  Ia>v  misplaced  anions  findings  of  fact,  considered 
according  to  its  nature:  Towle  v.  Sweeney,  2  Cal.  App.  29,  83  Pac. 
Rep.   74. 

Finding:  tliat  labor  performed  in  a  mine  "  for  the  development, 
improveme'-t,  protection,  and  preservation  of  the  said  premises," 
under  tlie  circumstances  of  tiie  case,  regarded  as  a  conclusion:  See 
Reese  v.  Bald  Mountain  Consol.  G.  M.  Co.,  133  Cal.  285,  289,  65  Pac. 
Rep.   578. 

•  Hamilton  v.  Delhi  M.  Co.,  118  Cal.  148,  151,     50  Pac.  Rep.  378. 


§§  897-899  mechanics'  liens.  746 

reduced  to  writing  and  signed  by  the  parties,  or  filed  in  the 
recorder's  office,  are  against  the  evidence." 

§  897.  Findings  sufficient  to  support  judgment.  A  gen- 
eral finding,  among  others,  that  on  a  certain  date  plaintiff, 
for  the  purpose  of  securing  and  perfecting  a  lien  for  the 
money  due  upon  the  land  and  premises,  pursuant  to  the  pro- 
visions of  the  statute,  specifically  referring  to  the  provisions, 
filed  for  record  in  the  office  of  the  recorder  of  the  county 
where  the  premises  are  situated  its  claim  therefor,  duly  veri- 
fied, and  that  such  claim  of  lien  is  in  due  form  and  was  filed 
in  due  time,  and  is  a  valid  subsisting  claim  of  lien  under 
the  law,  seems  to  be  sufficient  to  uphold  a  decree  enforcing 
the  lien.*^ 

Pajrment.  And  a  finding  that  a  debt  was  paid  by  a  note, 
the  receipt  therefor  expressly  stating  receipt  of  "  payment 
by  note,"  is  sufficiently  supported  by  the  receipt.*^ 

§  898.  Agency.  In  the  absence  of  counter-proof,  the 
prima  facie  evidence  of  agency,  by  acts  under  section  eleven 
hundred  and  eighty-three,"  —  that  is,  open  and  continued 
acts  and  declarations  of  any  person  having  charge  of  the 
property  upon  which  the  labor  was  done,  —  is  sufficient  to 
support  a  finding  of  agency.*^ 

§  899.  Same.  Insufficient  finding.  A  finding  that  the 
employer  was  in  possession  of  a  mine,  under  a  contract  with 
the  owner,  authorizing  the  former  to  hold  possession,  make 
improvements  and  prosecute  development-work,  is  not  a 
finding  that  he  was  the  agent  of  the  owner,  within  the  mean- 
ing of  section  eleven  hundred  and  eighty-three ;  *^  nor  is  it 

«  California  I.   C.   Co.   v.   Bradbury,    138   Cal.    328,    330,   71   Pac.    Rep. 

O  <^  Q  fi  1    T 

"«  Russ  L.  Co.  V.  Garrettson,  87  Cal.  589,   596,  25  Pac.  Rep.  747. 
«  Jenne  v.  Burger,   120  Cal.   444,   447,    52   Pac.   Rep.    706. 
See   "  Evidence,"   §§   764  et  seq.,  ante. 
"  Kerr's   Cyc.  Code   Civ.  Proe.,   §   1183. 

«  Donohoe  v.  Trinity  Consol.  G.  &  S.  M.  Co.,  113  Cal.  119,  124,  45 
Pac.  Rep.  259. 

«  Kerr's  Cyc.  Code  Civ.  Proc,  §   11  S3. 


I 


747  FINDINGS.  §§  900, 901 

a  finding  that  he  was  the  contractor,  subcontractor,  archi- 
tect, or  builder  of  the  owner;  nor  that  he  was  the  person 
having  charge  of  any  mining,  or  the  construction,  alteration, 
addition  to,  or  repair  of  any  building  or  other  improvement.*^ 

§  900.  Same.  Request  of  owner.  In  a  suit  to  foreclose 
the  liens  of  subclaimants  under  a  void  statutory  original 
contract,  and  the  findings  with  reference  to  each  of  the  liens 
were,  that  the  labor  was  performed  or  materials  furnished 
"  at  the  personal  instance  and  request  "  of  the  owner,  and 
that  the  owner  "  then  and  there  undertook  and  agreed  to  pay 
for  the  same,"  in  some  cases  it  appearing  either  in  the  find- 
ings or  pleadings  that  the  employment  was  through  the  ori- 
ginal contractor  as  agent,  but,  in  general,  it  not  being  stated 
whether  the  claimant  was  employed  bj"  the  owner  personally 
or  by  the  original  conti'actor  as  the  owner's  agent,  and  it 
is  explicitly  found  in  each  case  that  the  original  contractor 
was  the  owner's  agent  for  all  the  purposes  of  the  building, 
it  is  to  be  inferred  that  the  latter  was  intended,  especially 
where  it  is  rendered  certain  by  referring  to  the  evidence  in 
the  bill  of  exceptions,  even  where  it  does  not  appear  from 
the  findings  whether  the  contractor  acted  as  statutory  or 
merely  conventional  agent,  the  findings  being  equall}^  true, 
whichever  of  these  two  constructions  is  placed  upon  them.** 

§  901.  Same.  Void  contract.  Where  the  pleadings  and 
claim  of  lien  show  that  the  agency  of  the  contractor,  in  a 
suit  to  foreclose  a  subclaimant's  lien  under  a  void  statu- 
tory^ original  contract,  is  the  statutory  agency,  and  where 
the  findings  are  indefinite  as  to  whether  the  agency  was 
statutory,  or  actual,  or  ostensible,  the  findings  will  be  con- 
strued to  correspond  with  the  pleadings  and  claim  of  lien, 
and  will  be  insufficient  to  support  a  personal  judgment 
against  the  owner.*" 

«  Reese  v.  Bald  Mt.  Consol.  G.  M.  Co.,  133  Cal.  285,  287,  65  Pac.  Rep. 
578  (before  the  amendments  of  1903  and  1907  to  §  1183,  Kerr'd  Cjc. 
Code  Civ.   Proc). 

**  McClain  v.  Hutton,  131  Cal.  132.  143,  61  Pac.  Rep.  273,  63  Id.  182, 
622. 

«  McClain  v.  Hutton,  131  Cal.  132,  143,  61  Pac.  Rep.  273,  63  Id.  182, 
622. 


§902 


MECHANICS     LIENS. 


748 


§  902.  When  findings  may  not  be  attacked.  General 
creditors,  who  have  themselves  no  liens  upon  the  property, 
cannot  attack  the  correctness  of  the  findings  as  to  the  liens  of 
others  who  are  claimants."*^  It  has  been  held  that  the  find- 
ings cannot  be  attacked  when  a  nonsuit  has  been  granted,'^ 
or  when  the  case  has  been  submitted  to  the  court  upon  an 
agreed  statement  of  f  acts.^' 

»•  Kennedy-Shaw  L.  Co.  v.  Priet,   113  Cal.  291,  293,  45  Pac.Rep.  336. 

See  "General  Creditors,"  §§  601  et  seq.,  ante;  "Appeal,"  §  982,  post. 

°'  Where  nonsuit  is  granted,  no  oceaslon  for  any  findingii  upon  the 
Issues  presented  by  the  pleadings:  Kennedy  &  S.  L.  Co.  v.  Dusenbery, 
116  Cal.  124,  125,  47  Pac.  Rep.  1008.  See  Snell  v.  Payne,  115  Cal.  218, 
220,  46  Pac.  Rep.  1069. 

°^  And  likewise  where  a  case  is  submitted  to  the  trial  court  upon 
an  agreed  statement  of  facts,  the  only  question  being  as  to  what  is  tlie 
law  applicable  to  the  facts;  and  where  findings  are  made  in  such  a 
case,  the  objection  that  they  are  not  justified  by  the  evidence  can- 
not be  sustained:  McMenomy  v.  White,  115  Cal.  339,  343,  47  Pac.  Rep. 
109. 

Agreed  statement  of  facts,  findings  unnecessary,  but  not  harmful: 
Towle  V.  Sweeney,  2  Cal.  App.  29,  83  Pac.  Rep.   74. 

Ha^vaii.  Findings,  when  not  set  aside:  Allen  v.  Redward,  10  Hawn. 
151,  153. 


749  DECREE.  §  903 


CHAPTER    XLIL 

DECREE. 

§  903.  General  nature  of  decree  foreclosing  liens. 

§  904.  Effect  of  decree  on  third  persons. 

§  905.  Consolidated  action. 

§  906.  Kind  of  money  in  which  judgment  is  to  be  satisfied. 

§  907.  Interest. 

§  908.  Same.     Contractor. 

§  909.  Same.     Unliquidated  demands. 

§  910.  Same.     Interest  of  subcontractor's  claimants,  charge  against 

subcontractor. 

§  911.  Same.      Valid  contract.      Payment    of    fund     into    court     by 

owner. 

§  912.  Default.     Modiflcatioo  of  judgment. 

§  913.  Default  judgment  against  owner. 

§  914.  Personal  judgment.     "When  not  required. 

§  915.  Same.     When  obtained. 

§  916.  Same.     Purchaser  of  property  assuming  debt. 

§  917.  Same.     Notice  to  owner  to  withhold  payments. 

§  918.  Same.     Subclaimant  against  contractor.     Default. 

§  919.  Same.     When  not  given. 

§  920.  Same.     Death  of  owner.     Recovery  against  estate. 

§  921.  Same.     Jurisdiction    of    superior    court    to    render    personal 

judgment  in  suit  to  foreclose  lien. 

§  922.  Deficiency  judgment. 

§  923.  Same.     Notice  to  owner  to  withhold  payments. 

§  924.  Same.     Judgment  for  gross  amount. 

§  925.  Same.     Form  of  judgment. 

§  926.  Prior  mortgage.     Decree  of  sale. 

§  927.  Interests  in  land.     When  can  be  ordered  sold. 

§  928.  Recitals  in  decree.     Foreclosure  of  interest. 

§  929.  Same.     Ownership.     Knowledge. 

§  930.  Extent  of  lien.     Statutory  provision. 

§  931.  Same.     Necessity  of  designating  property  to  be  sold. 

§  932.  Same.     Effect  of  failure  to  define  extent  of  land. 

§  933.  Same.     Order  directing  sale  of  entire  building. 

§  934.  Same.     Land  necessary  for  convenient  use  and  occupation. 

§  903.     General  nature  of  decree  foreclosing  liens.  ^     In  an 
action  to  foreclose  meclianies'  lions,  tlic  decree  of  the  court 

1  See,    generaHy,    Kerr's    Vye.    r«Mlo    Civ.    Proc.    §§  664    et    seq..    and 
notes;    "Practice.      In    General,"    §§864    et    seq.,    ante;    and    see    Lan- 


§  903  mechanics'  liens.  "50 

should  adjust  the  rights  of  all  parties,  which  are  proper 
to  be  determined.^     A  court  of  equity  will  render  a  judg- 

caster  v.  Maxwell,  103  Cal.  67,  36  Pac.  Rep.  951;  Parke  &  L..  Co.  v. 
Inter  Nos  O.  &  D.  Co.,  147  Cal.  490,  493,  82  Pac.  Rep.  51  (uncertainty 
in  complaint). 

Vacating  judgment  for  excusable  neglect:  Dusy  v.  Prudom,  95  Cal. 
646,  30  Pac.  Rep.  798. 

Decree  foreclo-sing  lien  of  defendant,  setting  up  sufficient  claim 
entitling  to  affirmative  relief  in  answer  not  designated  as  a  cross- 
complaint:    See  Holmes  v.  Richet,  56  Cal.  307,  311,  38  Am.  Rep.  54. 

Colorado.  Decree  not  void;  reversible  error;  sale  of  several  pieces, 
on  one  of  which  no  lien;  sharing  pro  rata:  See  Ryan  v.  Staples.  76 
Fed.  Rep.  21,  23  C.  C.  A.  541,  affirming  s.  c.  62  Fed.  Rep.  35. 

Double  judgments:  See  Eagle  G.  M.  Co.  v.  Bryarly,  28  Colo.  262. 
65  Pac.   Rep.   52,   55. 

Remitting  portion  of  judgment:  See  Eagle  G.  M.  Co.  v.  Bryarly, 
28   Colo.    262,   65   Pac.   Rep.    52,  55. 

Judgment  cannot  be  rendered  for  items  not  set  forth  in  the  plead- 
ings:   Briggs  v.   Bruce,    9   Colo.    282,    11   Pac.  Rep.    204. 

Hawaii.  "Record  judgment":  See  Lucas  v.  Redward,  9  Hawn. 
23,   26;    Pacific  H.  Co.  v.  Lincoln,  12  Hawn.  358,   359. 

Idaho.  Giving  force  to  decree  affecting  property  in  another  state: 
See  Idaho  G.  M.  Co.  v.  Winchell,  6  Idaho  729,  59  Pac.  Rep.  533,  96  Am. 
St.  Rep.   290. 

Montana.  Judgment  founded  upon  a  bill  of  exchange,  reopened 
by  other  claimants  to  determine  whether  the  consideration  therefor 
was  in  fact  labor  or  materials  furnished:  Gilchrist  v.  Helena  H.  S.  & 
R.   Co.,    58   Fed.   Rep.    708. 

New  Mexico.  Decree  of  foreclosure  allowing  compensation  to  a 
master  and  his  attorney,  final  judgment,  and  appealable:  See  Neher 
V.   Crawford,   10  N.  M.   725,   65  Pac.  Rep.   156. 

Conclusiveness  of  judgment:  See  Armijo  v.  Mountain  E.  Co.,  11 
N.  M.   235,   67  Pac.  Rep.   7  26. 

Curing  improper  judgment  by  filing  disclaimer  thereof:  See  Pearce 
V.   Albright,   12   N.   M.    202,    67   Pac.   Rep.    726. 

Vacating  decree:  Texas,  S.  F.  &  N.  R.  Co.  v.  Orman,  3  N.  M.  612, 
9  Pac.  Rep.  253. 

Oregon.  If  it  nowhere  appears  in  the  judgment  roll  when  the  liens 
attached,  the  judgment  would  operate  as  a  lien  upon  the  premises 
as  an  ordinary  judgment  from  the  time  it  was  docketed:  Kendall  v. 
McFarland,    4    Oreg.    293    (under   statute   allowing   general   execution). 

Vtah.  Separate  decrees  where  action  is  dismissed  as  to  one  of  two 
separate  liens  joined  in  the  same  action:  Venard  v.  Green,  4  Utah 
67,  sub  nom.  Venard  v.  Old  Hickory  Min.  Co.,  6  Pac.  Rep.  415,  7  Id.  408. 

Recovering  not  more  tlian  demanded:  See  Culmer  v.  Caine,  22 
Utah  216,  61  Pac.  Rep.  1008,  1011. 

■Washington.  Judgment  foreclosing  lien  as  damages  in  action  on 
contractor's  bond  not  subject  to  collateral  attack:  See  Gritman  v. 
United  States  F.  &  G.  Co.,  41  Wash.  771,  83  Pac.  Rep.  6. 

2  Malone  v.  Big  Flat  G.  M.  Co.,  76  Cal.  578,  583,  18  Pac.  Rep.  772; 
Bewick  v.  Muir,  83  Cal.  368,  372,  23  Pac.  Rep.  389,  s.  c.  83  Cal.  373, 
23    Pac.   Rep.    390. 

Questions  of  title  cannot  be  adjudicated  therein:  See  Thorne  v. 
Hammond.    46   Cal.    530,    534    (so   as   between   vendor   and   vendee). 

Under  act  of  1861  (Stats,  and  Amdts.  1861,  p.  495),  a  decree  for  the 
sale  of  property  would  not  affect  the   rights  of  holders  of  any   other 


751  DECREE.  §  904 

ment  in  favor  of  each  claimant  according  to  the  amount 
which  it  shall  determine  each  is  entitled  to  receive.^  The 
court  should  determine  and  direct,  under  proper  pleadings, 
to  whom  the  fund  in  the  hands  of  the  owner  should  be  paid.* 

§  904.  Effect  of  decree  on  third  persons.  In  actions  to 
foreclose  liens  herein  considered,  the  decree  for  the  sale 
of  the  premises  in  its  enforcement  has  the  same,  and  no 
greater,  effect  upon  the  rights  of  purchasers  and  encumbran- 
cers, prior  to  the  commencement  of  the  suit,  as  a  similar 
decree  would  have  upon  the  foreclosure  of  a  mortgage.  If 
such  purchasers  are  not  made  parties,  they  are  in  no  respect 
bound  by  the  decree  or  the  proceedings  thereunder.'^ 

kinds  of  liens,  the  statute  having  conferred  jurisdiction  upon  a  court 
of  limited  powers  only:    Van  Winkle  v.  Stow,   23  Cal.   458,   461. 

See  "Nature  of  Lien  and  Remedies,"  §  9,  and  §§  638  et  seq.,  ante. 

Arixuna.     Bremen  v.  Foreinan,   1  Ariz.  413,   420,   25  Pac.  Rep.   539. 

Colorado.  Bassick  M.  Co.  v.  Schoolfleld,  10  Colo.  46,  14  Pac.  Rep. 
65  (Gen.  Stats.,  §2155);  Union  Pac.  R.  Co.  v.  Davidson,  21  Colo.  93, 
39  Pac.  Rep.  1095. 

There  inu.st  be  a  judgment  ag:ainst  the  original  contractor  in  a  suit 
by  a  subcontractor,  which  cannot  be  waived:  Estey  v.  Halleck  L.  Co., 
4  Colo.  App.   165,  34  Pac.  Rep.   1113. 

Montana.  See  Johnson  v.  Puritan  M.  &  M.  Co.,  19  Mont.  30,  47 
Pac.   Rep.  337;    Masow  v.  Germaine,   1  Mont.   268    (1865). 

Nevada.  Lonkey  v.  Wells,  16  Nev.  271;  Elliott  v.  Ivers,  6  Nev. 
290. 

New  Mexico.     See  Post  v.  Miles,  7  N.  M.  317,  34  Pac.  Rep.   586. 

3  Macomber  v.   Bigelow,   126   Cal.   9,  15,    58  Pac.   Rep.   312. 

Col»»ra«lo.  A  court  of  equity  will  protect  the  rights  of  all  parties 
interested  by  its  decree:  Joralmon  v.  McPhee,  31  Colo.  26,  71  Pac. 
Rep.   419,   423. 

Idaho.  The  court  must  declare  the  rank  and  priorities  of  liens  in 
its  decree:  Pacific  States  S.  L.  &  B.  Co.  v.  Dubois,  11  Idaho  319, 
83  Pac.  Rep.  513    (an   exhavistive  decision). 

*  Gamache  v.  South  School  Dist.,  133  Cal.  145,  149,  65  Pac.  Rep.  301. 

5  Whitney  v.  Higgins,  10  Cal.  547,  551,  70  Am.  Dec.  748;  Hocker 
V.  Kelley,   14   Cal.   164,   165;   March  v.  McKoy,   56  Cal.   85,  87. 

See  "Estoppel,"   §§816  et  seq.,  ante;    "Parties,"   §§662  et  seq.,  ante. 

As  to  validity  of  decree,  on  foreclosure  of  mortgage:  See  W'atts  V. 
Gallagher,  97  Cal.  47,  51,  31  Pac.  Rep.  626;  Brackett  v.  Banegas,  116 
Cal.  278,  283,  48  Pac.  Rep.  90,  58  Am.  St.  Rep.  164. 

Colorado.  Persons  not  served  not  bound  by  judgment:  Turner  v. 
Sawyer,   150  U.  S.  578,  bk.  37  L.  ed.   1189,   14  Sup.  Ct.  Rep.   192. 

Montana.     See  Davis  v.  Alvord,   94  U.  S.  545,   546,  bk.   24  L.  ed.   283. 
>Va.shington.     Harrington  v.  Miller,   4  Wash.   808,   810,   31  Pac.  Rep. 
325.     See  Frank  v.  Jenkins,  11  Wash.  611,   616,  40  Pac.  Rep.   220. 

Decree  foreclo.sing  lien  creates  a  jiidginent  upon  premises,  as 
against  subsequent  purchasers,  without  the  filing  in  the  oflice  of  the 
county  auditor  of  a  notice  of  lis  pendens,  or  of  a  transcript  of  the 
judgment:  Frank  v.  Jenkins,  supra.  See  Douthiit  V.  MacCulsky, 
11   Wash.    601,   40  Pac.  Rep.   186. 


§§  905, 906  mechanics'  liens.  752 

§  905.  Consolidated  action.  After  the  consolidation  of 
several  actions  for  the  foreclosure  of  liens,  a  single  judg- 
ment should  be  entered  directing  the  sale  of  the  property 
affected  by  the  liens,  and  the  application  of  its  proceeds 
to  the  satisfaction  of  the  amount  due  to  the  respective  lien- 
holders;  for,  among  other  reasons,  if  different  judgments 
were  entered,  there  might  be  different  purchasers,  and  the 
respective  titles  acquired  by  such  purchasers  would  necessi- 
tate further  litigation  for  the  purpose  of  determining  which 
was  superior.^ 

§  906.  Kind  of  money  in  which  judgment  is  to  be  satis- 
fied. The  judgment  may  be  for  the  same  kind  of  money 
as  agreed  upon  in  the  contract ;  and  the  judgment  foreclos- 
ing the  lien  of  laborers  of  a  person  in  possession  of  a  mine 
under  agreement  with  the  owner  to  work  the  same  may 
adjudge  payment  in  gold  coin,  where  the  contract  with  such 
laborers  was  to  pay  in  gold  coin."  It  appears,  however,  to 
have  been  held  that  where  the  claim  of  lien  mentions  "  gold 
coin,"  the  judgment  may  be  for  "  lawful  money  of  the  United 
States."  « 

In  Pacific  Mfg.  Co.  v.  Brown,  8  W^ash.  347,  36  Pac.  Rep.  273,  it  was 
held  that  where  a  lien  claimant's  right  to  a  lien  arises  subsequent 
to  the  commencement  of  the  mortgage  foreclosure  on  the  premises, 
and  such  lien  claimant  has  actual  knowledge  of  such  suit,  and  does 
not  seek,  by  intervening  or  otherwise,  to  protect  his  rights,  he  i3 
bound  by  the  judgment  in  such  foreclosure  suit;  but  the  burden  of 
proving  such  actual  knowledge  of  the  pendency  of  said  action  is 
upon  the  party  claiming  the  same,  where  the  claimant  is  not  a  party 
to  the  action  and  no  lis  pendens  has  been  filed;  and  the  fact  that 
the  attorney  for  the  foreclosing  mortgagee  and  the  lien  claimant 
is   the   same   person   is   not   sufficient. 

Court  has  no  jurisdiction  to  foreclose  lien  as  against  wife  not  made 
party  to  the  action  within  the  statutory  period,  since  a  wife  is  a 
necessary  party  to  the  foreclosure  of  a  mechanic's  lien  on  community 
property:  Northwest  B.  Co.  v.  Tacoma  S.  Co.,  36  Wash.  333,  78  Pac. 
Rep.  996. 

«  Willamette   S.    M.    L.    &   Mfg.    Co.   v.   Los   Angeles   College   Co.,    94 
Cal.   229,  233,   29  Pac.  Rep.   629. 
.   See   '•  Consolidation,"   §§  869   et  seq..  ante. 

Montana.     See   Mason   v.   Germaine,   1    Mont.   268    (1865). 

AVasiiington.  See  Douthitt  v.  MacCulsky,  11  Wash.  601,  40  Pac. 
Rep.    186. 

'  Bradbury  v.  Cronise,  46  Cal.   287,   289   Cgold  coin). 

See  Kerr's  Cyc.  Code  Civ.  Proc,  §  667,  and  note. 

•  See  Neihaus  v.  Morgan   (Cal.,  June  2,  1896),  45  Pac.  Rep.  255. 


753  DECREE.  §  907 

§  907.  Interest.  Interest  may  be  included  in  the  judg- 
ment up  to  the  time  of  its  entry,  upon  the  principal  sum 
found  due,  calculated  from  the  time  of  payment,  where 
the  contract  prescribes  such  time;  but  if  no  time  of  pay- 
ment is  provided,  interest  may  be  allowed  from  the  com- 
mencement of  the  action  to  foreclose  the  lien,  or  the  time  of 
filing  the  complaint  therein;*^  for  the  lien  which  the  statute 

»  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  106  Cal.  224,  233,  39  Pac.  Rep. 
758.  See  Trustees  v.  Heise,  44  Md.  472;  Johnson  v.  Boudry,  116  Mass. 
196;    Willamette   Falls   Co.   v.   Riley,    1    Oreg.    183. 

Interest  on  claim  from  date  of  filing  complaint,  in  absence  of  con- 
tract fixing-  specific  date  of  payment.  On  this  point  the  case  of 
Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  supra,  has  been  followed  and  ap- 
proved in  Lane  v.  Turner,  114  Cal.  396,  400,  46  Pac.  Rep.  290;  Macomber 
V.  Bigelow,  126  Cal.  9,  15,  58  Pac.  Rep.  312;  Hines  v.  Miller,  126  Cal. 
683,  685,  59  Pac.  Rep.  142;  Cutting  Fruit  P.  Co.  v.  Canty,  141  Cal. 
692,    697,    75   Pac.   Rep.   564. 

Under  Kerr's  Cyc.  Civ.  Code,  §  3287,  authorizing  interest  on  the 
recovery  of  damages  certain,  or  capable  of  being  made  certain, 
interest  is  allowable  on  a'  claim  of  lien  from  the  time  of  the  com- 
mencement of  an  action  to  foreclose  the  same,  where,  at  the  time  of 
such  commencement,  the  claim  is  capable  of  being  made  certain, 
either  by  computation  or  by  reference  to  market  rates:  Farnham  v. 
California  S.  D.  &  T.  Co.  (Cal.  App.,  May  18,  1908),  6  Cal.  App.  Dec. 
721,  96  Pac.  Rep.  788,  following  Macomber  v.  Bigelow,  126  Cal.  9,  15, 
58   Pac.   Rep.    312. 

Same.  (Quantum  meruit.  Not  allowed  on.  A  claim  for  the  reason- 
able value  of  services,  not  capable  of  being  made  certain  by  calcula- 
tion, under  Kerr's  Cyc.  Civ.  Code,  §  3287,  is  not  entitled  to  bear 
interest  prior  to  judgment:  Farnham  v.  California  S.  D.  &  T.  Co., 
supra. 

Payment  into  court  of  amount  remaining  due,  to  be  distributed 
by  the  court  to  claimants  entitled  thereto,  relieves  owner  of  liability 
to  pay  interest  or  costs:  Hooper  v.  Fletcher,  145  Cal.  375,  378,  79 
Pac.  Rep.  418. 

Subclaimants  entitled  to  interest  from  the  time  the  indebtedness 
became  due,  in  an  action  to  foreclose  a  lien,  and  have  the  same  made 
a  lien  upon  the  property:  Macomber  v.  Bigelow,  126  Cal.  9,  15,  58 
Pac.  Rep.  312.  See  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  106  Cal.  224. 
233,   39  Pac.  Rep.  758. 

Same.  In  case  of  unliquidated  claims,  interest  cannot  be  allowed 
on  claim  prior  to  date  of  rendition  of  judgment:  Cox  v.  McLaughlin, 
76  Cal.  60,  18  Pac.  Rep.  100,  9  Am.  St.  Rep.  164;  Easterbrook  v.  Far- 
quharson,  110  Cal.  311,  42  Pac.  Rep.  811;  Swinnerton  v.  Argonaut 
L.  &  D.  Co.,  112  Cal.  375,  44  Pac.  Rep.  719;  Macomber  v.  Bigelow,  126 
Cal.  9,  15,  58  Pac.  Rep.   312. 

See  post,  §  909. 

Colorado.  W'here  the  debtor  agrees  to  pay  interest,  it  may  be 
allowed:  Clear  Creek  M.  Co.  v.  Root,  1  Colo.  374;  otherwise,  it  seems 
not:    Small  v.  Foley,  8  Colo.  App.  435,  47  Pac.  Rep.  64. 

Montana.  Where  amounts  are  vexatiously  withheld:  Mason  v. 
Germaine,   1   Mont.    273    (1865). 

Oregon.  From  time  of  filing  claim:  Forbes  v.  Willamette  Falls 
E.  Co..  19  Oreg.  61,  23  Pac.  Rep.  670,  20  Am.  St.  Rep.  793.  See  Harris- 
Mech.  Liens  —  48 


§  908  mechanics'  liens.  754 

gives  the  claimant  is  as  extensive  as  the  claim  which  it  is 
intended  to  protect.^** 

If  materials  are  furnished  from  time  to  time  as  they  were 
needed,  and  claimant  received  payments  on  account,  his 
claim  is  not  "  unliquidated,  and  open  to  be  adjudicated  " ; 
and  if  at  the  time  of  the  commencement  of  the  action  to 
foreclose  the  lien  the  plaintiff's  right  of  recovery  on  an 
open  account  has  vested  in  him,  and  was  capable  of  being 
made  certain  by  calculation,  he  is  entitled  to  recover  interest 
thereon  from  that  date.^^ 

As  being  within  the  rule  above  stated,  interest  may  be 
allowed  upon  the  demand  from  the  date  when  the  claim 
of  lien  is  liled  for  record,  when,  under  the  contract,  the 
amount  is  due  at  the  time  of  such  filing.^^ 

§  908.  Same.  Contractor.  In  an  action  to  foreclose  a 
contractor's  lien,  he  is  entitled  to  interest  at  the  legal  rate 
upon  the  respective  payments  as  provided  in  the  original 
contract,  from  the  dates  when  they  become  due;  and  a 
decree  which  directs  interest  for  a  period  less  than  that 
directed   by  the   findings,   which   prescribed  interest   from 

burg-  L.  Co.  V.  Washburn,  29  Oreg.  150,  165,  44  Pac.  Rep.  390.  From 
time  the  sum  became  due:  Willamette  Falls  Co.  v.  Riley,  1  Oreg.  183. 
See  Forbes  v.  Willamette  Falls  B.  Co.,   supra. 

Utah.  From  date  of  lien,  when  the  sums  should  have  been  paid: 
Culmer  v.  Clift,   14  Utah   286,   47  Pac.  Rep.   85. 

Interest  properly  allowed  on  the  sum  awarded:  See  Sandberg  V. 
Victor   G.   &   S.   M.   Co.,    24   Utah    1,    66   Pac.   Rep.    360,    366. 

Washington.  See  Kellogg  v,  Littell  &  S.  M.  Co.,  1  Wash.  407,  411, 
25   Pac.    Rep.    461. 

Interest  allowed  only  from  date  of  lien  claim;  no  demand  for 
interest  in  claim,  and  prayer  for  interest  from  date  of  claim  in  the 
complaint:    Huetter  v.   Redhead,  31   "Wash.   320,   71   Pac.  Rep.   1016. 

i»  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  106  Cal.  224,  233,  39  Pac.  Rep. 
758.     See  following  note. 

"  See  Kerr's  Cyc.  Code  Civ.  Proc.,  §  3287,  and  note;  Pacific  Mut.  L. 
Ins.  Co.  V.  Fisher,"  106  Cal.  224,  233,  39  Pac.  Rep.  758;  Covell  v.  Wash- 
burn, 91  Cal.  560,  562,  27  Pac.  Rep.   859. 

In  Gamble  v.  Veil,  15  Cal.  508.  510  (1850),  it  was  held  that  the 
fact  that  a  judgment  on  a  lien,  including  a  charge  of  interest  at  two 
per  cent,  given  on  a  prior  extension  of  the  lien,  which  interest  was 
over  and  above  the  original  contract  price  for  the  articles  for  which 
the  lien  is  claimed,  is  not  of  itself  conclusive  evidence  of  fraud  in  the 
judgment,  and  such  interest  cannot  be  charged  on  the  premises,  as 
against  a  subsequent  mortgagee. 

"  Hines  v.  Miller,  126  Cal.  683,  685,  59  Pac.  Rep.  142. 


755  DECREE.  §§  909-912 

the  commencement  of  the  trial,  does  not  prejudice  the  rights 
of  the  owner.^^ 

§  909.  Same.  Unliquidated  demands.  As  the  converse 
of  the  rule  stated  in  the  last  preceding  section,  interest 
cannot  be  allowed  upon  an  unliquidated  demand  in  favor 
of  a  subcontractor  for  the  unascertained  value  of  the  work 
done  and  materials  furnished  by  him,  until  the  amount 
thereof  is  fixed  by  judgment  in  his  favor.^* 

§  910.  Same.  Interest  of  subcontractor's  claimants, 
charge  against  subcontractor.  Those  who  are  employed  by 
subcontractors  at  fixed  rates  of  compensation,  which  they 
are  entitled  to  receive  upon  completion  of  their  work,  may 
recover  interest  thereon,  and  the  amount  thereof  may  be 
decreed  to  be  a  lien  ujjon  the  property  of  the  owner;  but 
such  interest  will  be  deducted  from  the  amount  found  due 
to  the  subcontractors  in  the  marshaling  of  the  liens.^^ 

§  911.  Same.  Valid  contract.  Payment  of  fund  into 
court  by  owner.  Where  the  original  contract  is  valid,  and 
the  owner,  on  the  trial  of  actions  to  foreclose  liens,  pays 
the  residue  properly  remaining  in  his  hands  as  due  the 
contractor,  to  be  applied  toward  the  payment  of  claims  of 
lien,  the  owner  is  not  liable  for  interest  or  costs,  although  an 
issue  was  made  as  to  the  validity  of  the  contract,  which  was 
decided  in  favor  of  the  owner.^" 

§  912.  Default.  Modification  of  judgment.  Where  plain- 
tiff's lien   had   expired   before   his   action   was   commenced, 

^  Knowles  v.   Baldwin,    125  Cal.    224,    227,   57   Pac.   Rep.   988. 

M  Macomber  v.  Bigelow,  126  Cal.  9,  14,  58  Pac.  Rep.  312. 

See   note  to  §  907.   ante. 

Thus  where  the  suit  is  on  quantum  meruit,  and  the  account  Is 
unliquidated,  interest  cannot  be  recovered  "prior  to  the  decision  of 
the  case,"  or  judgment:  Macomber  v.  Bigelow,  123  Cal.  532,  56  Pac. 
Rep.   449.   126   Cal.   9,   16,    58   Pac.   Rep.    312. 

I'luintifl'  not  eutitletl  to  Interest  prior  to  verdict  or  judgment  in 
personal  action,  when  debt  not  susceptible  of  ascertainment:  See 
Cox  V.  McLaughlin,  76  Cal.  60,  66,   18  Pac.  Rep.  100,  9  Am.  St.  Rep.  164. 

"  Macomber  v.  Bigelow,   126  Cal.  9,  14,  58  Pac.  Rep.  312. 

"  Hooper  v.  Fletcher,  145  Cal.  375,  379,  79  Pac.  Rep.  418. 


§§  913, 914  mechanics'  liens.  75G 

and  he  takes  judgment  foreclosing  the  lien  and  directing 
a  sale  of  the  property  by  default,  the  court,  of  its  own  motion, 
on  the  next  day,  may  properly  modify  the  judgment  to  a 
money  judgment  only/^ 

§  913.  Default  judgment  against  owner.  Where  a  suit 
is  brought  in  equity  to  enforce  a  mechanic's  lien  upon  an  oil 
claim,  and  the  contract,  upon  which  the  suit  is  brought, 
was  made  with  a  lessee  of  the  oil-land,  a  default  jvidgment 
should  not  be  entered  against  the  owner,  aside  from  the 
question  whether  the  constable's  certificate  of  service  of  the 
summons,  which  is  not  allowed  under  sections  four  hundred 
and  ten  to  four  hundred  and  fifteen,^^  requiring  proof  by 
affidavit,  is  permissible,  under  section  one  hundred  and  fifty- 
three  of  the  County  Grovernment  Act  of  1897,^^  if  there  is 
no  allegation  in  the  complaint  that  the  lessee  had  authority 
to  develop  the  mine,  or  that  the  owner  had  knowledge  that 
the  work  was  being  done,  particularly  if  the  mine  is  charged 
with  a  lien  for  a  larger  amount  than  the  demand  stated  in 
the  summons,  which,  in  this  particular,  does  not  correspond 
with  the  prayer  in  the  complaint.^" 

§  914.  Personal  judgment.-^  "When  not  required.  To 
support  a  decree  foreclosing  a  mechanic's  lien,  at  least  in 

"  Lacore  v.  Leonard,  45  Cal.  394.  See  Kennedy-Shaw  L.  Co.  v. 
Prlet,  113  Cal.  291,  45  Pac.  Rep.  336;  Miller  v.  Carlisle,  127  Cal.  327. 
330,   59  Pac.  Rep.   785. 

AVashington.  Default,  and  judgment  by  court  commissioner:  See 
Peterson  v.  Dillon,   27  Wash.   78.   67  Pac.  Rep.  397. 

"  Kerr's  Cje.  Code  Civ.  Proc,  §§  410-415. 

^'   See   HenuiiiK's   General   Laws,   p.    189. 

2»  Berentz  v.  Belmont  O.  M.  Co.,  148  Cal.  577,  580,  84  Pac.  Rep.  47, 
113  Am.  St.  Rep.  388,  aifirining,  on  this  point,  s.  c.  sub  nom.  Berentz 
V.  Kern  King  O.  &  D.   Co.    (Cal.   App.,  June   17,   1905),   84  Pac.   Rep.   45. 

-'  Personal  judgement  In  addition  to  decree  enforcing  lien,  not  void 
on  its  face:  See  Canadian  &  A.  M.  &  T.  Co.  v.  Clarita  L.  &  L  Co., 
140  Cal.   672,   677,   74   Pac.   Rep.   301. 

Rigrlit  to  recover  a  personal  judgment  in  an  action  brought  to 
foreclose  a  mechanic's  lien,  where  tlie  lien  fails,  is  in  no  way  depend- 
ent upon  the  meclianic's-lien  law:  Los  Angeles  P.  B.  Co.  v.  Higgins 
(Cal.  App.,  Aug.   8,   1908),   7  Cal.  App.   Dec.   164. 

Claimant  entitled  to  "personal  judgment  against  owner  for  work 
and  material  furnished  directly  to  owner,  he  having  agreed  to  pay 
therefor:  Farnham  v.  California  S.  D.  &  T.  Co.  (Cal.  App.,  May  15, 
1908),  96  Pac.  Rep.  788. 


757  DECREE.  §  915 

eases  other  than  the  owner's  claimants,  it  is  not  necessary 
that  there  should  be  a  judgment  against  the  parties  person- 
ally liable ;  -^  and  a  personal  judgment  against  the  contrac- 
tor is  not  necessary  on  the  part  of  his  subclaimants.-^  The 
subject  of  parties  defendant  may  be  profitably  consulted  in 
connection  with  this  matter.*^ 

§  915.  Same.  When  obtained.  A  personal  judgment 
may  be  obtained,  in  the  action  to  foreclose  the  lien,  against 
the  party  personally  liable,  under  the  general  principles  of 
law,  without  counsel  fees  or  expense  of  preparing  and  record- 
ing the  mechanic's  lien.  Thus  a  personal  judgment  may 
be  obtained  against  the  owner,  by  the  original  contractor,  for 
the  value  of  his  work  and  materials,  in  a  proper  case ;  -^  or 

Same.      Sewer  improvement.     Against  contractor.     Error  when.     In 

an  action  to  enforce  an  equitable  lien  against  the  unpaid  balance  of  a 
sewer-improvement  fund,  by  laborers  who  performed  work  upon  the 
sewer  at  the  instance  of  the  subcontractors,  who  abandoned  the  work, 
and  which  laborers  gave  notice  to  withhold  payment  from  the  con- 
tractors upon  such  abandonment,  while  they  are  entitled  to  have  such 
portion  of  the  fund  applied  to  the  payment  of  their  claims,  they  are 
not  entitled  to  a  personal  judgment  against  the  contractors:  Goldtree 
V.  San  Diego   (Cal.  App.,  July  9,   1908),  7  Cal.  App.  Dec.   101. 

Plaintiff  entitled  to  a  decree  foreclosing  his  lien  on  the  property, 
as  well  as  a  personal  judgment  against  the  contractor:  Rasmusson  v. 
Liming   (Wash.,  Aug.  3,   1908),  96  Pac.   Rep.   1044. 

AVashlngton.  Personal  judgment  for  part  of  demand  for  which 
lien  not  established:  See  Spaulding  v.  Burke,  33  Wash.  679,  74  Pac. 
Rep.    829    (under    2    Ballinger's    Ann.    Codes    and    Stats.,    §5911). 

^  Russ  L.  &  M.  Co.  V.  Garrettson,  87  Cal.   589,  596,  25  Pac.   Rep.  747. 

Oregon.  Osborn  v.  Logus,  28  Oreg.  302,  37  Pac.  Rep.  456,  38  Pac. 
Rep.  190,  42  Pac.  Rep.  997. 

23  Russ  L.  &  M.  Co.  V.  Garrettson,  87  Cal.  589,  596,  25  Pac.  Rep. 
747;  Western  L.  Co.  v.  Phillips,   94  Cal.   54,   55,  29  Pac.  Rep.   328. 

Oregon.  Osborn  v.  Logus,  28  Oreg.  302,  37  Pac.  Rep.  456,  38  Pac. 
Rep.  190,  42  Pac.  Rep.  997;  Ainslie  v.  Kohn,  16  Oreg.  363,  374,  19  Pac. 
Rep.    97. 

'*  See   §§  662   et   seq.,  ante. 

^  Morris  v.  W'ilson,  97  Cal.  644,  647,  32  Pac.  Rep.  801.  See  Gnekow 
V.  Confer   (Cal.,   March    31,   1897),  48   Pac.   Rep.   331. 

Colorado.  Cannon  v.  Williams,  14  Colo.  21,  23  Pac.  Rep.  456  (1883); 
St.  Kevin  Min.  Co.  v.  Isaacs,  18  Colo.  400,  32  Pac.  Rep.  822;  Finch  v. 
Turner,  21  Colo.  287,  40  Pac.  Rep.  565;  Lowrey  v.  Svard,  8  Colo.  App. 
357,   46   Pac.   Rep.   619. 

Contra  (under  act  of  1872):  Hart  v.  Mullen,  4  Colo.  512  (materials); 
Barnard   v.   McKenzie,    4   Colo.    251. 

Montana.  Gilliam  v.  Black,  16  Mont.  217,  40  Pac.  Rep.  303.  No 
personal  judgment  can  be  rendered  against  the  owner  when  the 
service  of  the  summons  is  by  pulilication :  Richards  v.  Lewisohn,  19 
Mont.  128,  130,  47  Pac.  Rep.  645;  nor  against  the  contractor,  although 


§  915  mechanics'  liens.  758 

against  the  contractor,  by  a  subclaimant  with  whom  the 
former  has  contracted ;  -''  or  against  the  subcontractor,  by 

the  lien  may  be  foreclosed:  O'Rourke  v.  Butte  Lodge,  19  Mont.  541, 
48   Pac.   Rep.   1106. 

IVo  personal  judgment  was  allowed  on  a  separate  several  contract 
against  one  of  joint  debtors,  on  a  claim  secured  by  lien,  in  an  action 
to  foreclose  the  same  against  them:  Nolan  v.  Lovelock,  1  Mont.  224, 
229. 

Personal  judgment  in  foreclosure,  under  act  of  18G4,  not  allowed: 
Riale   v.    Roush,   1    Mont.    474;    Mochon   v.    Sullivan,    1    Mont.    470. 

New  Mexico.  Contra  to  text:  See  Rupe  v.  New  Mexico  L.  Assoc, 
3  N.  M.  261,  5  Pac.  Rep.  730. 

Oregon.  As  an  equity  court  is  entirely  without  jurisdiction  to 
enter  a  judgment  or  decree  in  a  mechanic's-lien  case  against  the 
property-owner  in  excess  of  the  amount  for  which  the  lien  is  allowed, 
its  power  ends  with  the  ascertainment  of  the  amount  of  the  lien 
and  its  enforcement,  even  where  the  contract  is  directly  with  the 
owner:  Allen  v.  Blwert,  29  Oreg.  428,  44  Pac.  Rep.  823,  48  Pac.  Rep. 
54,  approving  and  following  Ming  Yue  v.  Coos  Bay  R.  &  E.  R.  &  N. 
Co.,  24  Oreg.  392,  which  holds  that,  under  the  provisions  of  the  Oregon 
law,  which  maintains  the  distinction  between  suits  in  equity  and 
actions  at  law,  although  it  abolishes  the  difference  in  the  forms  at 
law,  a  complaint  for  the  foreclosure  of  a  mechanic's  lien,  which  does 
not  state  a  cause  of  suit,  cannot  be  retained  as  an  action  at  law 
to  recover  moneys;  following  Beacannon  v.  Liebe,  11  Oreg.  443.  5 
Pac.  Rep.  273;  Burrage  v.  Bonanza  G.  &  Q.  M.  Co.,  12  Oreg.  169,  6  Pac. 
Rep.    766. 

"U'ashington.  Spears  v.  Lawrence,  10  Wash.  368,  38  Pac.  Rep.  1049, 
45  Am.  St.  Rep.  789.  See  Littell  v.  Miller,  8  Wash.  566,  36  Pac.  Rep. 
492. 

28  Kennedy-Shaw  L.  Co.  v.  Priet,  113  Cal.  291,  293,  45  Pac.  Rep.  336; 
Kennedy-Shaw  L.  Co.  v.  Dusenbery,  116  Cal.  124,  126,  47  Pac.  Rep. 
1008:   Marchant   v.   Hayes,    120   Cal.   137,    139,    49   Pac.   Rep.    840. 

Colorado.     Hume   v.    Robinson,   23    Colo.    359,    362,    47   Pac.    Rep.    271. 

Personal  judgment  against  party  liable,  under  3  Mills's  Ann  Stats., 
1st  ed.,  §  2894.  See  American  Nat.  Bank  v.  Barnard,  15  Colo.  App. 
110,  61  Pac.  Rep.  200,   202. 

Void  personal  judgment  or  for  lien  foreclosure:  See  Schweitzer  v. 
Mansfield,   14  Colo.  App.  236,   59  Pac.  Rep.   843. 

Montana.     Goodrich   L.  Co.  v.   Davie,  13   Mont.   76,   32   Pac.   Rep.   282. 

AVashington.  Peterman  v.  Milwaukee  B.  Co.,  11  Wash.  199,  200, 
39  Pac.  Rep.  452.  Under  a  previous  act,  an  appeal  from  a  decree  of 
foreclosure  of  a  mechanic's  lien,  which  resulted  in  the  reversal  of  the 
decree  on  account  of  the  invalidity  of  the  lien,  will  not  affect  a 
personal  judgment  obtained  against  the  contractor  in  the  foreclosure 
proceedings  under  the  code  of  1881,  when  he  is  not  joined  in  the 
appeal:  Littell  v.  Miller,  8  Wash.  566,  36  Pac.  Rep.  492.  In  this  case 
it  was  said,  speaking  of  the  cases  of  Hildebrandt  v.  Savage,  4  Wash. 
524,  30  Pac.  Rep.  643,  32  Pac.  Rep.  109,  and  Eisenbeis  v.  Wakeman,  3 
Wash.   534,   28  Pac.  Rep.  923: 

"Upon  a  careful  consideration  of  the  opinions,  in  the  light  of 
the  facts  before  the  court,  it  will  be  seen  that  they  did  not  go  to  the 
extent  of  holding  that  a  judgment  against  the  contractor,  under 
the  circumstances  of  these  cases,  would  be  absolutely  void.  The 
most  that  can  be  said  to  have  been  established  by  these  cases  is. 
that   the    rendition    of   a   judgment   against   the   contractor,    in   a   suit 


759  DECREE.  §§  916, 917 

his  material-man,  for  material  purchased  by  the  former,  and 
used  in  the  building.-^ 

§  916.  Same.  Purchaser  of  property  assuming  debt.  If 
a  purchaser  of  the  property  agrees  to  pay  the  debt  at  the 
time  of  the  purchase,  and  assumes  the  debt,  a  personal  .judg- 
ment may  be  rendered  against  him,  if  he  is  made  a  party 
to  the  foreclosure  of  the  lien,^^  in  the  same  manner  that  a 
deficiency  judgment  may  be  entered  against  the  grantee  of 
a  mortgager,  who  has  assumed  the  mortgage  debt.-" 

§  917.  Same.  Notice  to  owner  to  withhold  pa5niients.  A 
personal  judgment  may  also  be  rendered  against  the 
employer  upon  sufficient  notice  to  such  employer  to  stop 
payments  due  from  the  employer  to  the  original  contractor, 
under  section  eleven  hundred  and  eighty-four,^°  in  the  man- 
ner heretofore  pointed  out,^^  which  notice  is  in  the  nature 

to  foreclose,  after  it  had  been  adjudged  that  no  lien  existed,  would 
be  erroneous." 

Tacoma  L.  &  Mfg.  Co.  v.  Wolff,  7  Wash.  478,  35  Pac.  Rep.  115, 
755,  was  cited  as  establishing  that  doctrine  (Stiles,  J.,  dissenting). 
See  also  Tacoma  L.  Co.  v.  Wolff,  5  Wash.  264,  31  Pac.  Rep  753,  32 
Pac.  Rep.  462;  Warren  v.  Quade,  3  Wash.  750,  755,  29  Pac.  Rep.  827. 
The  case  of  Hildebrandt  v.  Savage,  supra,  cited  the  Colorado  cases 
of  Barnard  v.  McKenzie  and  Cannon  v.  Williams,  supra,  to  tlie  effect 
that  where  the  statute  does  not  authorize  the  same,  in  a  suit  in  a 
court  cf  equity  to  foreclose  the  lien  no  tersonal  judgment  can  be 
obtained  where  the  lien  fails,  and  the  case  of  Schettler  v.  Vendome 
Turkish  Bath  Co.,  2  Wash.  457,  27  Pac.  Rep.  76,  was  also  cited  to  that 
effect;  and  it  was  held  that  the  case  of  Kellogg  v.  Littell  &  S.  Mfg. 
Co.,  1  Wash.  407,  25  Pac.  Rep.  461,  was  not  in  conflict  with  this 
position,  the  distinguishing  feature  in  the  latter  case  being  that 
there  had  been  no  objection  to  the  trial  of  these  matters  in  the 
equitable  proceeding,  and  tliere  had  been  no  demand  for  a  jury  trial; 
a   dissenting   opinion,   however,    on   the   point    last   stated,   being   filed. 

Wyomiug.  Fein  v.  Davis,  2  Wyo.  118,  124  (although  the  lien  was 
not  sustained). 

='  Davies-Henderson  L.  Co.  v.  Gottschalk.  81  Cal.  641,  647,  22  Pac. 
Rep.  860.  See  McMenomy  v.  White,  115  Cal.  342,  343,  47  Pac.  Rep. 
132;  Marchant  v.  Hayes,  120  Cal.  137,  139,  52  Pac.  Rep.  154;  Humboldt 
L.  &  M.  Co,  V.  Crisp,  146  Cal.  686,  688,  81  Pac.  Rep.  30,  106  Am.  St. 
Rep.  75,  2  Am.  &  Eng.  Ann.  Cas.  811. 

="  San  Francisco  P.  Co.  v.  Fairfield,  134  Cal.  220,  226,  66  Pac.  Rep. 
255. 

*■•  Hopkins  v.  Warner,  109  Cal.  133,  41  Pac.  Rep.  868;  San  Fran- 
cisco  Pav.  Co.  v.   Fairfield,   134   Cal.   220,   226,   66  Pac.   Rep.   255. 

'-'>   Kerr's  Cyc.  Code  Civ.  Proc,  §  1184. 

"  SS  547   et  seq.,  ante. 


i§  918,  919 


MECHANICS     LIENS. 


760 


of  a  garnishment  of  such  moneys  either  due  or  to  become 
due.^- 

§  918.     Same.    Subclaimant  against  contractor.    Default. 

Where  a  judgment  of  nonsuit  is  granted,  in  a  consolidated 
action,  in  favor  of  the  owners,  against  one  of  the  subclaim- 
ants,  for  insufficiency  of  his  claim  of  lien,  the  claimant  still 
remains  a  party  to  the  consolidated  action  as  against  the 
other  plaintiffs  in  the  several  actions  and  against  the 
contractor.  When,  in  such  case,  however,  the  contractor 
defaults,  the  lien  claimants  may  recover  judgment  against 
him  by  default.^^ 


§  919.  Same.  When  not  given.  In  an  action  to  enforce 
a  lien  of  mechanics  and  others  for  materials  furnished  or 
labor  performed,  neither  a  personal  judgment  for  the  amount 
of  the  claim, ^*  nor  for  a  deficiency,^^  can  be  rendered  against 

32  First  Nat.  Bank  v.  Ferris  Irr.  Dist.,  107  Cal.  55,  65,  40  Pac.  Rep. 
45;  Bates  v.  Santa  Barbara  County,   90  Cal.  543,  547,   27  Pac.  Rep.  438. 

See   "  Cumulative   Remedies,"    §§  638   et   seq.,   ante. 

Oregon.  Contra:  Allen  v.  Blwert,  29  Oreg.  429,  44  Pac.  Rep.  823, 
45  Pac.  Rep.  54;  Ming  Yue  v.  Coos  Bay  R.  &  E.  R.  &  N.  Co.,  24  Oreg. 
392,  33  Pac.  Rep.   641. 

S3  Kennedy-Shaw  L.  Co.  v.  Dusenbery,  116  Cal.  124,  126,  47  Pac. 
Rep.   1008. 

See  "  Evidence,"  §§  795  et  seq.,  ante. 

Montana.  Personal  judgment  on  failure  to  establish  lien:  See 
Mason   v.   Germaine,    1   Mont.    267    (1865). 

2^  Barber  v.  Reynolds,  44  Cal.  519,  537;  Eaton  v.  Rocca,  75  Cal. 
93,  97,  16  Pac.  Rep.  529;  Phelps  v.  Maxwell's  Creek  G.  M.  Co.,  49  Cal. 
336,  338;  Giant  P.  Co.  v.  San  Diego  F.  Co..  78  Cal.  193,  200,  20  Pac. 
Rep.  419;  Gibson  v.  W^heeler,  110  Cal.  243,  246,  42  Pac.  Rep.  810; 
Gnekow  v.  Confer  (Cal.,  March  31,  1897),  48  Pac.  Rep.  331;  Santa 
Clara  V.  M.  &  L.  Co.  v.  Williams  (Cal.,  Dec.  8,  1892),  31  Pac.  Rep. 
1128.     See  Neihaus  v.  Morgan   (Cal.,  June  2,  1896),  45  Pac.  Rep.  255. 

See  "Liability  of  Owner,"  §§523  et  seq.,  ante;  "Cumulative  Reme- 
dies," §§  638  et  seq.,  ante. 

Under  peculiar  statute  of  1861  (Stats,  and  Amdts.  1861,  p.  495), 
a  personal  judgment  had  to  be  recovered  in  another  action  in  a  court 
of  competent  jurisdiction:  Van  Winkle  v.  Stow,  23  Cal.  457,  459.  See 
McNeil  V.  Borland,  23  Cal.  144. 

Colorado.  Lowrey  v.  Svard,  8  Colo.  App.  357,  46  Pac.  Rep.  619; 
Hume  V.  Robinson,   23  Colo.   359,  47  Pac.  Rep.  271. 

Montana.     Gilliam  v.  Black,  16  Mont.  217,  40  Pac.  Rep.  303   (agent). 

Washington.  Mentzer  v.  Peters,  6  Wash.  540,  33  Pac.  Rep.  1078 
(owner).  But  see  Kellogg  v.  Littell  &  S.  Mfg.  Co.,  1  Wash.  407,  411, 
25   Pac.   Rep.   461. 

35  See   Kerr's   Cye.   Code   Civ.  Proc,    §  1194. 

Act  of  March  30,  1868,  §  10,  subd.  2,  providing  that  each  claimant 
shall  be  entitled  to  an  execution  for  any  balance  found  due  him  after 


761  DECREE.  §§  920-922 

those  defendants  against  whom  no  personal  claim  has  been 
established  according  to  the  general  principles  of  law,  even 
if  the  statutory  original  contract  is  void.^*' 

§  920.     Same.     Death  of  owner.     Recovery  against  estate. 

Where  the  owner  dies,  the  suit  of  subchiiniauts  to  foreclose 
a  lien  upon  the  property,  being  in  the  nature  of  a  proceeding 
in  rem,  in  which  no  personal  judgment  is  rendered  against 
the  owner,  there  can  be  no  recovery  against  his  estate,  pay- 
able in  due  course  of  administration.^^ 

§  921.  Same.  Jurisdiction  of  superior  court  to  render 
personal  judgment  in  suit  to  foreclose  lien.  When  the  supe- 
rior court  acquires  jurisdiction  by  the  filing  of  a  suit  to  fore- 
close a  mechanic's  lien,  it  has  jurisdiction  to  render  a  personal 
judgment  for  the  amount  claimed,  although  the  right  to  the 
lien  is  denied,  and  the  amount  claimed  is  less  than  three  hun- 
dred dollars.^® 

§  922.  Deficiency  judgment.  "  Whenever,  in  the  sale  of 
the  property  subject  to  the  lien,  there  is  a  deficiency  of 
proceeds,  judgment  may  be  docketed  for  the  deficiency,  in 
like  manner  and  with  like  effect  as  in  actions  for  the  fore- 
closure of  mortgages " ;  ^^  and  a  personal  judgment  may 
be  docketed  against  the   owner,**'  or  contractor,   for  such 

the  disposition  of  the  proceeds  of  the  sale,  must  be  confined  to  those 
cases  in  which  a  defendant,  upon  general  principles  of  law,  and 
irrespective  of  the  provisions  of  the  act,  would  be  personally  liable 
for  the  work  done  and  materials  furnished:  Phelps  v.  Maxwell's 
Creek  G.  M.  Co.,  49  Cal.  33G,  338.     See  preceding-  note. 

36  Kellogg  V.  Howes,  81  Cal.  170,  180,  22  Pac.  Rep.  509,  6  L.  R.  A. 
588;  Southern  Cal.  L.  Co.  v.  Schmitt,  74  Cal.  625,  627,  16  Pac.  Rep. 
516:  Davies-Henderson  L.  Co.  v.  Gottschalk.  81  Cal.  641,  647,  22  Pac. 
Rep.  860;  First  Nat.  Bank  v.  Ferris  Irr.  Dist.,  107  Cal.  55,  65,  40  Pac. 
Rep.  45. 

"  Booth  v.  Pendola,  88  Cal.  36,  44,  23  Pac.  Rep.  200,  24  Id.  714,  25 
Id.    1101. 

Non-presentation  of  claim,  owner's  laborer:  WeithofC  v.  Murray, 
76  Cal.  508,  511,   18  Pac.  Rep.  435. 

=«  Mannix  v.  Tryon  (Cal.  Sup.,  Sept.  19,  1907),  91  Pac.  Rep.  983, 
affirming  Becker  v.  Superior  Court  (Cal.  Sup.,  May  21,  1907),  90  Pac. 
Rep.  689,  whicli  overrules,  on  this  point,  Miller  v.  Carlisle,  127  Cal. 
327,  59  Pac.  Rep.   785. 

3"   Kerr's   Cje.   Code  Civ.  Proc.,   §  1194. 

*"  See  Pacific  Mut.  L,.  Ins.  Co.  v.  Fisher,  106  Cal.  224.  231,  39  Pac. 
Rep.    758. 


§§  923-925  mechanics'  liens.  762 

deficiency  as  each  may  be  personally  liable  for  to  the  per- 
sons with  whom  he  dealt.*^ 

§  923.  Same.  Notice  to  owner  to  withhold  payments.  In 
like  manner,  a  deficiency  judgment  against  the  person  to 
whom  the  materials  were  furnished,  or  for  whom  the  work 
was  performed,  may  be  obtained  in  an  action  to  subject  the 
unpaid  portion  of  the  contract  price  to  the  payment  of  the 
claimant's  claim,  after  notice  to  the  owner,^"  provided  for 
in  section  eleven  hundred  and  eighty-four,*^  in  the  manner 
heretofore  pointed  out,**  without  seeking  to  enforce  a  lien 
against  the  building.*^ 

§  924.  Same.  Judgment  for  gross  amount.  In  an  action 
foreclosing  miners'  liens,  the  court  must  determine  the 
amount  for  which  the  defendants  are  liable  to  the  plain- 
tiffs, in  order  that  it  may  be  seen,  when  the  sheriff's  return 
comes  in,  whether  there  is  a  deficiency  in  the  proceeds  of 
sale ;  and  this  determination  b}'  the  court  is  its  judgment 
upon  the  allegations  of  the  plaintiffs  in  this  respect,  and, 
under  section  six  hundred  and  sixty-eight,  is  properly 
entered  by  the  clerk  in  the  "  judgment-book."  *^ 

§  925.  Same.  Form  of  judgment.  In  a  suit  to  enforce 
miners'  liens,  where  the  decree  declares  that  ''  judgment  be, 
and  the  same  is  hereby,  entered  in  favor  of  plaintiffs  and 
against  defendants,"  in  certain  specified  sums,  and  that  the 
liens  are  foreclosed,  and  directs  that  the  property  be  sold, 
and  if  the   amount   derived  from   the   sale   is   insufficient, 

«  Giant  P,  Co.  v.  San  Diego  F.  Co.,  78  Cal.  193,  200,  20  Pac.  Rep. 
419;  Wood  v.  Oakland  &  B.  R.  T.  Co.,  107  Cal.  500,  502,  40  Pac.  Rep. 
806. 

New  Mexico.  •  Ford  v.  Springer  Land  Assoc,  8  N.  M.  37,  41  Pac. 
Rep.    541. 

AVashin^on.  Execution  for  deficiency:  See  Eisenbeis  v.  Wakeman, 
S  Wash.    534,    539,    28   Pac.  Rep.    923. 

**  See  §§  547  et  seq..  anta. 

«  Kerr's   Cyc.   Code   Civ.   Proc.,    §  1184. 

**  See  §§  547  et  seq.,  ante. 

«  Bates  V.  Santa  Barb'ara  County,  90  Cal.  543,  548,  27  Pac.  Rep.  438. 

«  Hines  v.  Miller,  126  Cal.  683,  685,  59  'Pac.  Rep.  142  (under  Kerr's 
Cyc.   Code   Civ.   Proc,    §  668). 

Utali.  Deficiency  judgment  against  building  after  sale  of  land: 
See  Sanford  v.  Kunkel,  30  Utah  379,  85  Pac.  Rep.  363,  1012. 


763  DECREE.  §§  926-928 

judgment  for  deficiency  be  docketed,  such  judgment  is  not 
enforceable  as  a  personal  judgment,  except  for  such  defi- 
ciency as  may  be  shown  upon  the  return  of  the  sheriff. 
Such  judgment  will  not  be  reversed  by  the  appellate  court 
upon  the  theory  that  a  personal  judgment,  except  for  such 
deficiency,  was  not  authorized.*^ 

§  926.  Prior  mortgage.  Decree  of  sale.  In  a  suit  to 
enforce  a  senior  mortgage  and  mechanics'  liens,  the  mort- 
gage affecting  onl}-  part  of  the  lands  embraced  in  the 
other  liens,  a  judgment  providing  for  the  sale,  in  satisfac- 
tion of  the  mechanics'  liens,  of  the  mortgaged  lands  is  errone- 
ous ;  **  and  when  all  the  questions  relating  to  the  liens  are 
involved  in  another  suit,  the  judgment  foreclosing  the  senior 
mortgage  should  be  modified  so  as  to  confine  it  to  the  fore- 
closure of  the  senior  mortgage  and  to  securing  any  surplus 
resulting  from  the  sale  of  the  premises  affected  by  the  mort- 
gage for  the  benefit  of  the  holders  of  the  mechanics'  liens.*^ 

§  927.    Interests  in  land.     When    can    be    ordered    sold. 

The  interest  of  any  one  in  the  property  upon  which  a  lien 
for  labor  performed  upon  or  materials  furnished  for  the 
same  is  sought  to  be  enforced  cannot  be  adjudged  to  be 
sold,  unless  his  liability  is  under  the  statute,  or  otherwise 
proved  under  proper  averments  in  the  complaint  in  the  action 
to  foreclose  the  lien.^° 

§  928.  Recitals  in  decree.  Foreclosure  of  interest.  In  an 
action  to  foreclose  the  liens  of  mechanics  and  others  for 
materials  furnished  for  or  labor  performed  upon  real  prop- 
erty, the  decree  should  recite  that  the  defendants  are  for- 
ever barred  and  foreclosed  of  all  right,  etc.,  "  from  and  after 
the  delivery  of  the  sheriff's  deed,  after  sale  as  hereinafter 
provided."  ^^ 

«  Hines  v.   MiUer,   126   Cal.   683,   59  Pac.   Rep.    142. 

«  McClain  v.  Hutton,  131  Cal.  132,  141,  61  Pac.  Rep.  273,  63  Id.  1S2, 
622;  Willamette  S.  M.  Co.  v.  Kremer,  94  Cal.  205,  29  Pac.  Rep.  633. 

"  McClain  v.  Hutton,  131  Cal.  132,  141,  61  Pac.  Rep.  273,  63  Id.  182, 
622. 

"«  Eaton  V.  Rocca,  75  Cal.  93,  97,  16  Pac.  Rep.  529;  Phelps  v.  Max- 
well's Creek  G.  M.  Co.,  49  Cal.  336,  338. 

"  Castagnetto  v.  Coppertown  Co.,   146  Cal.   329,  80   Pac.   Rep.    74. 


§§  929, 930  mechanics'  liens.  764 

§  929.  Same.  Ownership.  Knowledge.  It  is  not  neces- 
sary, in  the  judgment  foreclosing  the  lien,  to  repeat  that 
at  the  time  of  the  commencement  of  the  action  the  land 
belonged  to  the  person  who  caused  the  building  to  be  con- 
structed, or  that  it  was  erected  with  his  knowledge,  where 
these  allegations  are  made  in  the  complaint,  and  found  to 
be  true  by  the  court.^^ 

§  930.  Extent  of  lien.  Statutory  provision.  Section 
eleven  hundred  and  eighty-five  -'^^  provides :  "  The  land  upon 
which  any  building,  improvement,  well,  or  structure  is  con- 
structed, together  with  a  convenient  space  about  the  same, 
or  so  much  as  may  be  required  for  the  convenient  use 
and  occupation  thereof,  to  be  determined  by  the  court  on 
rendering  judgment,  is  also  subject  to  the  lien,  if,  at  the 
commencement  of  the  work,  or  of  the  furnishing  of  the 
materials  for  the  same,  the  land  belonged  to  the  person  who 
caused  said  building,  improvement,  well,  or  structure  to  be 
constructed,  altered,  or  repaired,  but  if  such  person  owned 
less  than  a  fee-simple  estate  in  such  land,  then  only  his 
interest  therein  is  subject  to  such  lien."  ^* 

"  Dusj^  V.  Prudom,  95  Cal.  646,  649,  30  Pac.  Rep.  798. 

Montana.  It  is  not  necessary  for  claimant  to  claim,  upon  fore- 
closure, the  right  to  remove  improvements  upon  which  his  lien  has 
been  enforced,  or  to  have  the  decree  provide  for  such  removal  within 
a  reasonable  time:  Grand  Opera  House  Co.  v.  McGuire,  14  Mont.  558, 
37   Pac.   Rep.    607. 

New  Mexico.  "  If  it  should  appear,  on  a  hearing,  that  any  portion 
of  the  property  upon  which  the  labor  was  performed,  or  in  the  con- 
struction of  which  the  materials  were  used,  did  not  become  a  part  of 
the  realty,  or  that  the  same  was  severed  therefrom  after  the  lien  had 
attached,  the  decree  can  be  so  molded  as  to  reach  such  property" 
(dictum):  Post  v.  Miles,  7  N.  M.  317,  34  Pac.  Rep.  586. 

In  an  action  at  law,  if  a  joint  liability  is  charged,  judgment  cannot 
be  entered  separately  against  one  of  the  parties;  and  in  an  action 
in  assumpsit  a  judgment  to  enforce  a  mechanic's  lien  cannot  be 
entered  against  any  or  all  the  parties:  Rupe  v.  New  Mexico  L.  Assoc, 
3  N.  M.  393,  9  Pac.  Rep.  301.  See  Straus  v.  Finane,  3  N.  M.  398,  5  Pac. 
Rep.  729;  Finane  v.  Las  Vegas  H.  &  I.  Co.,  3  N.  M.  256,  5  Pac.  Rep. 
725. 

«  Kerr's   Cyc.   Code   Civ.  Proc.,    §  1185. 

M  See  §§  438  et  seq.,  §§  399  et  seq.,  §§  166  et  seq.,  and  §§  717  et  seq., 
ante. 

Arizona.  Interest  of  vendor  not  causing  improvement  can  only  be 
sold  by  ordering  payment  of  unpaid  purchase  price:  Bremen  v.  Fore- 
man,  1  Ariz.   413,   25   Pac.   Rep.   539    (Comp.   Laws,   p.   248,   §  4), 


765  DECREE.  §§  931-933 

§  931.     Same.     Necessity  of  designating  property  to  be 

sold.  In  an  action  to  foreclose  the  lien,  it  is  necessary  that 
the  property  which  the  plaintiff  seeks  to  subject  to  sale 
therefor  shall  be  definitely,  described,  and  that  the  judg- 
ment shall  specifically  designate  the  property  affected  by 
the  lien  and  directed  to  be  sold;  otherwise  the  officer  exe- 
cuting the  judgment  can  neither  point  out  the  property  which 
he  offers  for  sale,  nor  place  the  purchaser  in  possession 
thereof,  and  the  deed  which  he  may  execute  will  not  convey 
any  title. ^^ 

§  932.  Same.  Effect  of  failure  to  define  extent  of  land. 
But  failure  of  the  court  to  define  the  exact  amount  or  extent 
of  land  necessary  for  the  building  does  not  invalidate  the 
decree,  and  it  will  not  be  reversed  upon  appeal  of  the  owner. 
In  such  case,  however,  it  maj^  be  that  the  purchaser  would 
acquire  no  land  beyond  that  covered  by  the  building 
described  in  the  decree.^® 

§  933.     Same.     Order   directing  sale   of  entire  building. 

"Where  it  appears  that  the  building  covers  more  land  than 
is  described  in  the  complaint,  but  the  claim  of  lien  is  suffi- 
cient to  embrace  the  entire  building,  the  court  should  direct 
amendments  to  the  complaint,  so  that  it  may  conform  to 
the  proofs.  The  court  should  then  direct  the  sale  of  the 
entire  building,   and  such  land  as  it  should  determine  to 

=5  Gamble  v.  VoH,  15  Cal.  507,  510;  Willamette  S.  M.  Co.  v.  Kremer, 
94   Cal.    205,   210,   29   Pac.   Rep.    633. 

^  Sidlinger  v.  Kerkow,  82  Cal.  42,  45,  22  Pac.  Rep.  932.  Thus 
"Where  the  claim  of  lien  describes  the  land  around  the  building  on 
which  the  lien  is  claimed,  in  these  words,  "  witli  such  convenient 
space  of  land  around  tlie  same  as  may  be  required  for  the  convenient 
use  and  occupation  tliereof,"  the  description  is  sufficient;  but  it  is 
proper  for  the  court,  by  its  decree,  to  define  tlie  amount  and  extent 
of  land  connected  with  the  building,  which  is  properly  subject  to  the 
lien,  and  if  the  decree  follows  the  description  in  the  claim,  it  does 
not  invalidate  the  decree,  but  it  is  doubtful  whether  the  purchaser 
will  acquire  any  land  beyond  that  covered  by  tlie  building:  Tiljbetts 
V.  Moore,   23   Cal.   208,   213. 

Montana.     Vantilburgh    V.    Black,    2    Mont.    371. 

Nevada.     See   Dickson   v.   Corbett,    11   Nev.   277. 

Kew  Mexico.  Description  by  metes  and  bounds,  or  government 
surveys,  governs  quantities:  Ford  v.  Springer  L.  Assoc,  8  N.  M. 
37,  41  Pac.  Rep.  541. 


§  934  mechanics'  liens.  766 

be  required  for  the  convenient  use  and  occupation  thereof. 
A  decree  which  directs  a  sale  of  only  that  part  of  the  build- 
ing which  is  upon  the  premises  set  forth  in  the  complaint  is 
erroneous. °^ 

§  934.  Same,  Land  necessary  for  convenient  use  and 
occupation.  It  is  not  necessary  to  repeat  the  statement  in 
the  judgment,  that  the  land  directed  to  be  sold  is  all  neces- 
sary for  the  convenient  use  and  occupation  of  the  build- 
ing, where  the  complaint,  in  the  action  of  foreclosure  of 
the  lien,  alleges  that  all  of  such  land  is  necessary  for  such 
use  and  occupation,  and  the  court  finds  this  allegation  to 
be  true.^^  The  decree,  in  the  absence  of  any  description 
of  more  land  for  its  convenient  use  and  occupation,  directs 
the  sale  only  of  the  building,  and  the  land  on  which  it  is 
situated.^** 

"  Willamette  S.  M.  Co.  v.  Kramer,  94  Cal.  205,  210,  29  Pac.  Rep.  633. 

Colorado.  Separate  liens  on  land  and  building;  decree  appor- 
tioning liens  and  establishing  priorities:  See  Joralmon  v.  McPhee, 
31   Colo.    26,    71   Pac.   Rep.    419. 

=»  Dusy  V.  Prudom,   95   Cal.   646,   649,   30  Pac.   Rep.    798. 

See  §§  438  et  seq.,  ante. 

New  Mexico.  Decree  ordering  sale  of  entire  mining  claim  proper, 
without  reciting  that  all  is  necessary  for  convenient  use  and  occupa- 
tion, where  no  structure  has  been  erected;  and  testimony  must  be 
taken  in  lower  court,  in  order  to  limit  extent  of  lien:  See  Post  v. 
Fleming,  10  N.  M.  476,  62  Pac.  Rep.   1087,  1090. 

s»  Newell  V.  Brill,  2  Cal.  App.  61,  64,  83  Pac.  Rep.  76.  See  Sidlinger 
V.  Kerkow,  82  Cal.  42,  22  Pac.  Rep.  932. 


767  COSTS  AND  AT'i'ORNEYS'  FEES.  §  935 


CHAPTER   XLIII. 

COSTS  AND  ATTORNEYS'  FEES. 

§  935.     Costs  and  attorneys'  fees.     Statutory  provision. 

§  936.     Costs.     Preparing,  filing,  and  recording  claim  of  lien. 

§  937.     Same.     Recovery  by  owner. 

§  938.  Same.  Recovery  of  costs  against  owner.  Prolonging  liti- 
gation. 

§  939.  Same.  Owner  may  set  off  costs  and  interest  against  con- 
tractor when. 

§  940.     Attorneys'  fees.     Unconstitutionality  of  provision. 

§  941.  Same.  Attorneys'  fees  not  allowed,  except  on  foreclosure 
of  liens  on  property. 

§  942.  Same.  Nature  of  attorneys'  fees  allowed,  and  their  relation 
to  costs. 

§  943.     Same.     Measure  of  attorneys'  fees. 

§  944.     Same.     Relation  of  legal  services  to  action. 

§  945.     Same.     Agreement  as  to  fees. 

§  946.  Same.  Lower  court  fixing  attorneys'  fees  in  supreme 
court. 

§  947.     Same.     When  owner  not  liable  for  attorneys'  fees. 

§  935.     Costs  and  attorneys'  fees.^     Statutory  provision. 

Section   eleven   hundred    and   ninety-five-    provides:  "The 

'  Costs.  Completion  of  trial  before  expiration  of  five  days  after 
offer  of  compromise:  See  Scammon  v.  Denio,  72  Cal.  393,  14  Pac.  Rep. 
98. 

See,  generally,  "  Obligations  of  Owner,"  §§  523  et  seq.,  ante,  and 
"  Constitutionality,"   §  40,   ante. 

Colorado.  Appropriation  of  money  to  pay  costs  to  accrue  not  to 
be  applied  to  judgment:  See  Schweizer  v.  Mansfield,  14  Colo.  App. 
236,  59  Pac.  Rep.  843.  See  Sayre-Newton  L.  Co.  v.  Union  Bank,  6  Colo. 
App.   541,   41  Pac.   Rep.   844. 

Idaho.  Cost  of  protesting  an  acceptance  cannot  be  included  in 
decree  as  damages:  Bradbury  v.  Idaho  &  O.  L.  I.  Co.,  2  Idaho  221, 
10  Pac.   Rep.   620. 

3Iontaua.  Provision  for  attorneys'  fees  (Comp.  Stats.,  §  1394)  held 
applicable  to  all  liens  in  chapter  on  liens:  Wortman  v.  Kleinschmidt, 
12   iMont.   316,   30   Pac.   Rep.    280    (1889). 

Oregon.  Refusal  of  trial  court  to  allow  costs  in  suit  in  equity 
(to  foreclose  mechanic's  lien)  will  not  be  reviewed,  except  in  case 
of  an  abuse  of  discretion:  Leick  v.  Beers,  28  Oreg.  483,  43  Pac.  Rep. 
658.  Division  of  costs  sustained:  Chamberlain  v.  Hibbard,  26  Oreg. 
428,   38  Pac.   Rep.   437. 

^  Kerr's  Cyc.  Code  Civ.  Proc,  §  1195. 


§  936  mechanics'  liens.  768 

court  must  also  allow,  as  a  part  of  the  costs,  the  money 
paid  for  filing  and  recording  the  lien,  and  reasonable  attor- 
neys' fees  in  the  superior  and  supreme  courts,  such  costs 
and  attorneys'  fees  to  be  allowed  to  each  lien  claimant  wiiose 
lien  is  established,  whether  he  be  plaintiff  or  defendant, 
or  whether  they  all  join  in  one  action  or  separate  actions 
are  consolidated."  ^ 

§  936.  Costs.  Preparing,  filing,  and  recording  claim  of 
lien.  Notwithstanding  the  holding  of  the  court  that  attor- 
neys' fees  may  not  constitutionally  be  allowed,  which  is  dis- 
cussed elsewhere,*  it  has  been  determined  that  the  sraaii 
expense  of  filing  the  claim  of  lien  is  properly  included  in  the 
phrase  "  costs  and  disbursements."  ^  The  right  to  recover 
the  costs  of  filing  and  recording  the  claim  of  lien,  like  the 
general  right  to  recover  costs,  is  a  necessary  incident  to  the 
judgment  establishing  the  lien,''  and  does  not  depend  upon 
any  averments  in  the  complaint,  except  such  as  are  neces- 
sary to  establish  the  lien,  but  the  costs  of  preparing  a  claim 
of  lien,  or  attorneys'  fees  therefor,  are  not  a  part  of  such 
costs.'^ 

'  See  "Consolidation,"  §§869  et  seq.,  ante;  Kerr's  Cyc.  Code  Civ. 
Proc,   §  1184. 

W'ithliolding;  costs  by  the  o-»vuer,  after  notice:    See  "  Notice,"   §§  547 

et  seq.,  ante. 

See   Kerr's    Cyc.    Code    Civ.   Proc,    §  1193. 

Recovery  of  costs  from  the  contractor  l>y  the  owner:  See  "  Riglits 
of  Owner,"  §§  510  et  seq.,  ante. 

New  Mexico.  Master  adding  unnecessary  expenses  as  to  notice 
of  sale,  etc.,  before  redemption  period  has  expired,  cannot  recover 
back  such  expenses,  if  the  liens  are  paid  before  the  redemption  period 
expires:    Neher  v.  Crawford,   10  N.  M.   725,  65  Pac.  Rep.   156. 

Unnecessary  expenses  on  sale  not  costs:  See  Neher  v.  Crawford, 
10    N.    M.    725,    65    Pac.    Rep.    156. 

*  See   §  40,  ante,  and  §  940,   post. 

^  Builders'  S.  Depot  v.  O'Connor  (Cal.,  Jan.  10,  1907),  88  Pac.  Rep. 
982,   985. 

8  Mulcahy  v.  Buckley,  100  Cal.  484,  490,  35  Pac.  Rep.  144.  See 
Carriere  v.  Minturn,  5  Cal.  435;  Rapp  v.  Spring  Valley  G.  Co.,  74  Cal. 
532,  16  Pac.  Rep.  325;  West  Coast  L.  Co.  v.  Newkirk,  80  Cal.  275,  22 
Pac.   Rep.    231. 

'  Mulcahy  v.  Buckley,  100  Cal.  484,  490,  35  Pac.  Rep.  144.  See 
Kerr's  Cye.  Code  Civ.  Proc,  §  1184.  It  has  been  held  that  in  an  action 
to  foreclose  a  lien  of  a  material-man  and  of  subcontractors  in  tlie 
elty  and  county  of  San  Francisco,  the  plaintiffs,  as  the  prevailing 
parties,  were  entitled  to  recover  as  costs  the  percentage  of  the  amount 
recovered  allowed  by  the  act  of  February  9,  1866:  Golden  Gate  L.  Co. 
V.  Sahrbacher,  105  Cal.  114,  118,  38  Pac.  Rep.  635. 


^1 


769  COSTS  AND  attorneys'  fees.  §§  937-939 

Void  contract.  Contractor's  right  to  costs.  Where  the 
statutory  original  coutraet  is  void,  the  original  contractor 
has  no  lien,  and  in  an  action  on  the  implied  contract,  he 
cannot  recover  counsel  fees  or  expenses  of  preparing  or 
recording  a  claim  of  lien.^ 

§  937.  Same.  Recovery  by  owner.  Where  the  owner 
obtains  a  nonsuit  against  a  lien  claimant  for  the  insufficiency 
of  his  claim  of  lien,  the  former  is  entitled  to  a  judgment 
against  the  latter  for  costs,  although  the  latter  may  remain 
a  party  to  the  action,  as  against  other  parties  than  the 
owner.® 

§  938.  Same.  Recovery  of  costs  against  owner.  Pro- 
longing litigation.  It  has  been  held  that  where  the  con- 
tractor defaults  in  a  suit  _  to  enforce  a  lien  by  his  subclaim- 
ant,  and  thus  there  is  no  contest  between  the  contractor 
and  his  subclaimants,  and  the  owner,  apparently  without 
cause  or  right,  raises  a  contest  on  every  point,  and  litigates 
the  case  to  the  end,  the  latter  thereby  delays  the  claimants 
in  recovering  the  money  justly  due,  and  puts  them  to  unne- 
cessary expense ;  and,  under  a  valid  original  contract,  the 
balance  due  thereunder  is  not  the  limit  of  the  owner's  liabil- 
ity, so  far  as  costs  and  attorneys'  fees  are  concerned,  but 
they  are  properly  allowed,  and  made  payable  out  of  the 
proceeds  of  the  property  ordered  to  be  sold.^° 

§  939.  Same.  Owner  may  set  off  costs  and  interest 
against  contractor  when.  In  an  action  by  the  contractor 
against  the  owner,  the  latter  may  set  off  the  amount  paid 
by  him  upon  foreclosure  of  the  liens  of  material-men  for 
materials   furnished  the  contractor,   including  the   amount 

AVasliinKton.  Costs  may  be  ordered  paid  out  of  amount  tendered 
and  deposited  by  the  owner  Into  court:  Kruegel  v.  Kitchen,  33  Wash. 
214,    74   Pac.   Rep.    373. 

»  Morris   v.    MMlson,    97   Cal.    644,   647,   32    Pac.    Rep.    801. 

»  Kennedy-Shaw  L.  Co.  v.  Dusenbery,  116  Cal.  124,  126,  47  Pac. 
Rep.   1008. 

"  De  Camp  L.  Co.  v.  ToUnirst,  99  Cal.  631,  63.^,  34  PaO.  Rep.  438. 
See  also  Covell  v.  Washburn,   91   Cal.   560,  27  Pac.  Rep.   859. 

See  "  Obligrations  of  Owner,"  §§  523  et  seq.,  ante;  and  §  944,  post. 
Mech.  Liens  —  49 


§  940  mechanics'  liens.  770 

allowed  and  paid  for  attorneys'  fees  and  costs/^  as  Avell 
as  for  principal  and  interest  on  the  liens ;  ^~  but  where  the 
owner  had  accepted  and  agreed  to  pay  orders  of  the  con^ 
tractor,  he  cannot  recover  the  costs  and  expenses  incurred 
by  reason  of  his  refusal  to  pay  them.'^^ 

§  940.  Attorneys'  fees.  Unconstitutionality  of  provision. 
The  California  courts,  as  has  already  been  shown,^*  after 
some  wavering,  and  in  line  with  the  decisions  of  some  and 
against  the  ruling  in  other  states,  have  held  that  the  pro- 
vision of  the  statute  ^^  providing  an  allowance  for  attorneys' 
fees  is  unconstitutional.^®     This  rule  must  be  considered  as 

"  Clancy  v.  Plover,  107  Cal.  272,  275,  40  Pac.  Rep.  394;  Covell  v. 
Washburn,    91   Cal.    560,    27   Pac.   Rep.    859. 

See    "  Obligations    of    Owner,"    §§  523    et    seq.,    ante. 

12  Covell  V.  Washburn,   91  Cal.   560,   562,   27  Pac.  Rep.   859. 

«  Adams  V.  Burbank,   103  Cal.   646,   651.   37  Pac.  Rep.   640. 

See  "  Obligations  of  Owner,"   §§  523  et  seq.,  ante. 

"  See  §  40,  ante. 

"  Kerr's  Cyc.  Code  Civ.  Proc,   §  1195. 

18  Mannix  v.  Tryon  (Cal.  Sup.,  Sept.  19,  1907),  91  Pac.  Rep.  983 
(judgment  modified  by  striking  out  allowance);  Union  L.  Co.  v. 
Simon  (Cal.  Sup.),  89  Pac.  Rep.  1081,  rever.sing  s.  c,  on  this  point 
(Cal.  App.,  March  13,  1906),  89  Pac.  Rep.  1077;  Builders'  Supply  Depot 
V.  O'Connor  (Cal.,  Jan.  10,  1907),  88  Pac.  Rep.  982,  985;  H.  Raphael 
Co.  V.  Grote  (Cal.,  Aug.  10,  1908),  36  Cal.  Dec.  125;  Los  Angeles  P.  B. 
Co.  V.  Los  Angeles  P.  B.  &  D.  Co.  (Cal.  App.,  Jan.  23,  1908),  94  Pac. 
Rep.  775;  Hill  v.  Clark  (Cal.  App.,  Feb.  28,  1908),  95  Pac.  Rep.  382, 
Farnham  v.  California  S.  D.  &  T.  Co.  (Cal.  App.,  May  15,  190S),  96 
Pac.  Rep.  788;  Los  Angeles  P.  B.  Co.  v.  Higgins  (Cal.  App.,  July  9, 
1908),    7   Cal.   App.    Dec.    95. 

Error  to  a.sses.««  attorney  fees  in  costs:  H.  Raphael  Co.  v.  Grote  (Cal., 
Aug.  10,  1908),  36  Cal.  Dec.  125:  Hall  v.  Clark  (Cal.  App.,  Feb.  28. 
1908),  95  Pac.  Rep.  382;  Farnham  v.  California  S.  D.  &  T.  Co.  (Cal. 
App.,  May  15,  1908),  96  Pac.  Rep.  788. 

Even  though  provided  for  by  statute;  Hill  v.  Clark  (Cal.  App., 
Feb.   28,   1908),   95  Pac.  Rep.  382. 

Earlier  decisions  otherwise:  Peckham  v.  Fox,  1  Cal.  App.  307, 
309,  82  Pac.  Rep.  91.  See  Linck  v.  Johnson,  134  Cal.  xix,  66  Pac.  Rep. 
674. 

See  "  Constitutional  Aspect's,"  §  40,  ante. 

Colorado.  The  provision  of  Sess.  Laws  1893,  ch.  cxvii,  p.  325,  §  18 
(3  Mills's  Ann.  Stats.,  1st  ed.,  §  2893a),  relating  to  attorneys'  fees, 
being  unconstitutional,  none  can  be  allowed  in  an  action  to  foreclose 
mechanics'  liens:  Davidson  v.  Jennings,  27  Colo.  187,  60  Pac.  Rep. 
354,  83  Am.  St.  Rep.  49,  48  L.  R.  A.  340;  Sickman  v.  Wollett,  31  Colo. 
58,  71  Pac.  Rep.  1107;  Campbell  v.  Los  Angeles  G.  M.  Co.,  28  Colo. 
256,  64  Pac.  Rep.  194  (writ  of  error  presenting  this  sole  question  not 
allowed) ;  Burleigh  B.  Co.  v.  Merchant  B.  &  B.  Co.,  13  Colo.  App.  455, 
466,  59  Pac.  Rep.  83,  87;  Antlers  Park  R.  M.  Co.  v.  Cunningham,  i'« 
Colo.    284,    68   Pac.    Rep.    226;    Perkins   v.    Boyd,    16    Colo.   App.    266,    65 


771  COSTS  AND  attorneys'  FEES.  §  941 

established  in  California,  although,  at  most,  its  soundness 
may  be  considered  a  question  upon  which  a  difference  of 
opinion  might  reasonably  exist.^^  An  allowance  of  attorneys' 
fees,  therefore,  in  an  action  to  foreclose  mechanics'  liens, 
is  now  erroneous  in  those  states  in  which  the  provision  has 
been  held  unconstitutional,^*  and  as  to  them  the  adjudicated 
law  relating  to  the  subject  becomes  comparatively  unim- 
portant. 

§  941.  Same.  Attorneys'  fees  not  allowed,  except  on 
foreclosure  of  liens  on  property.  In  a  simple  action  against 
the  one  personally  liable,^**  or  in  an  action  to  subject  the 
unpaid  portion  of  the  contract  price  to  the  payment  of  the 
claim,  without  seeking  the  foreclosure  of  a  lien  upon  the 
realty,  a  claimant  is  not  entitled  to  recover  for  the  attor- 
neys' fees,  or  for  the  expenses  incurred  by  him  for  filing 

Pac.  Rep.  350,  s.  c.  (Sup.  Ct.),  86  Pac.  Rep.  1045.  See  EagLe  G.  M.  Co. 
V.  Bryarly,  28  Colo.  262,  65  Pac.  Rep.  52. 

Idabo.  The  provision  of  Sess.  Laws  1899,  ch.  i,  p.  150,  §  12,  relating 
to  the  allowance  of  attorneys'  fees  on  foreclosure  of  mechanics'  liens, 
is  constitutional,  and  they  should  be  allowed:  Thompson  v.  Wise 
Boy  M.  &  M.  Co.,  9  Idaho  363,  74  Pac.  Rep.  958. 

Attorneys'  fees  are  allowed  upon  the  foreclosure  of  mechanics'  and 
laborers'  liens:  Robertson  v.  Moore,   10  Idaho  115,   77   Pac.  Rep.   218. 

Montana.  Provision  for  attorneys'  fees  held  constitutional:  Helena 
S.  H.  &  S.  Co.  V.  Wells,  16  Mont.  65,  40  Pac.  Rep.  78;  Wortman  v. 
Kleinschmidt,    12   Mont.    316,    30   Pac.   Rep.    280    (1889). 

New  Mexico.  Provision  as  to  attorneys'  fees  in  Comp.  Laws  1897, 
§  2229,  held  constitutional:  Genest  v.  Las  Vegas  M.  B.  Assoc,  11 
N.  M.   251,   67  Pac.  Rep.   743. 

Utah.  Provision  in  Rev.  Stats.,  §  1400,  for  attorneys'  fees,  held  un- 
constitutional:   Brubaker   v.    Bennett,    19   Utah    401,    57    Pac.    Rep.    170. 

Washington.  Provision  for  attorneys'  fees  held  constitutional: 
Littell  V.  Saulsberry,  40  Wash.  550,  82  Pac.  Rep.  909  (2  Ballinger's 
Ann.  Codes  and  Stats.);  Ivall  v.  Willis,  17  Wash.  645,  50  Pac.  Rep. 
467  (Laws  1893,  p.  428,  §  17).  See  Griffith  v.  Maxwell,  20  Wash.  403, 
55   Pac.   Rep.   571;   Fitch   v.   Applegate,   24   Wash.   25,   64   Pac.   Rep.    147. 

"  Merced  L.  Co.  v.  Bruschi  (Cal.  Sup.,  Nov,  29,  1907),  92  Pac.  Rep. 
844. 

Attorneys'  fees  allowed,  under  Kerr's  Cyc.  Code  Civ.  Proc.,  §  1195, 
were  held  to  be  a  lien  upon  the  property:  Peckham  v.  Fox,  1  Cal.  App. 
307,   309,   82   Pac.  Rep.   91. 

"  Stimson  M.  Co.  v.  Nolan  (Cal.  App.,  June  19,  1907),  91  Pac.  Rep. 
262;  Builders'  Supply  Depot  v.  O'Connor  (Jan.  10,  1907),  88  Pac.  Rep. 
982. 

Washington.  Attorneys'  fees:  See  Fitch  v.  Applegate,  24  Wash. 
25,  64  Pac.  Rep.  147  (work  on  sawmill);  Ivall  v.  "^Villis,  17  Wash.  645, 
50  Pac.  Rep.  467;  Griffith  v.  Maxwell,   20  Wash.   403,   55  Pac.  Rep.   571. 

"  Central  L.  &  M.  Co.  v.  Center,  107  Cal.  193,   197,  40  Pac.  Rep.  334. 


§  942  mechanics'  liens.  772 

a  claim  of  lien.  Under  the  statute,  such  items  are  only 
recoverable  in  actions  to  enforce  the  liens;  -°  and  even  though 
a  claimant  is  successful  in  such  action  on  appeal  to  the 
supreme  court,  no  attorney's  fee  will  be  allowed,  if,  finally, 
the  lien  is  not  sustained. ^^ 

§  942.  Same.  Nature  of  attorneys'  fees  allowed,  and 
their  relation  to  costs.  Where  the  statute  relating  to  liens 
of  mechanics  and  others  upon  real  property  is  upheld,  the 
attorney's  fee  allowed  thereunder  upon  foreclosure  of  the 
lien  is  not  technically  nor  strictly  speaking  a  part  of  the 
costs ;  2^  and  if  allowed  by  the  court,  it  seems  that  it  need 
not  be  placed  in  the  memorandum  of  costs ;  ^^  but  it  bears 

»  Bates  V.  County  of  Santa  Barbara,  90  Cal.  543,  548,  27  Pac.  Rep. 
438. 

Plaintiff  cannot  recover  attorneys'  fees  out  of  the  proceeds   of  the 

property,  where  he  fails  to  establish  his  lien:  Pacific  Mut.  L.  Ins. 
Co.  V.  Fisher,  106  Cal.  224,  234,  39  Pac.  Rep.  758;  Keener  v.  Eagle 
Lake  L.  &  L  Co.,  110  Cal.  627,  632,  43  Pac.  Rep.  14.  And  likewise  under 
the  act  of  March  31,  1891,  relating  to  laborers,  declared  unconstitu 
tional  (see  §  31,  ante),  where  the  plaintiff  did  not  establish  a  lien, 
no  recovery  of  attorneys'  fees  was  allowed:  Ackley  v.  Black  Hawk 
G.  M.  Co.,  112  Cal.  42,  45,  44  Pac.  Rep.  330. 

Idabo.  Costs:  See  Bradbury  v.  Idaho  &  O.  L.  I.  Co.,  2  Idaho  221, 
10  Pac.  Rep.  620. 

"  Mclntyre  v.  Trautner,  78  Cal.  449,  21  Pac.  Rep.  15.  See  Stimson 
V.  Dunham  C.  &  H.  Co.,  146  Cal.  281,  285,  79  Pac.  Rep.  968. 

Contractor  not  entitled  to  attorneys'  fees  wben  fund  is  exhausted: 
Stimson  v.   Dunham   C.   &  H.  Co.,   146  Cal.   281,   285. 

2»  Mclntyre  v.  Trautner,  78  Cal.  449,  21  Pac.  Rep.  15;  Schallert- 
Ganahl  L.  Co.  v.  Neal,  94  Cal.  192,  193,  29  Pac.  Rep.  622;  Rapp  v. 
Spring  Valley  G.   Co.,    74   Cal.    532,   533,   16   Pac.   Rep.    325. 

Oregon.  "  The  attorney's  fee  provided  for  in  the  mechanic's-lien 
act  (Hill's  Ann.  Laws,  §  3677)  are  not  fi.xed  and  determined  by  the 
act,  nor  imposed  strictly  as  a  penalty,  but  rather  in  the  nature  of 
costs,  of  which  the  amount  is  to  be  determined  by  the  court;  and  it 
is  therefore  .  .  .  not  obnoxious  to  the  constitution,"  as  granting 
privileges  to  one  litigant  not  granted  to  another,  or  denying  the 
equal  protection  of  the  laws:  Title  G.  &  T.  Co.  v.  Wrenn.  35  Oreg. 
62.  56  Pac.  Rep.  271,  76  Am.  St.  Rep.  454,  citing  Griflith  v.  Maxwell, 
20  Wash.  403,  55  Pac.  Rep.  571. 

Washington.  The  provision  as  to  attorneys'  fees  held  not  to  con- 
flict with  the  state  constitution:  Griffith  v.  Maxwell,  20  Wash.  403. 
55  Pac.  Rep.  571.  See  Fitch  v.  Applegate,  24  Wash.  25,  64  Pac.  Rep. 
147. 

"  Rapp  V.  Spring  Valley  G.  Co.,  74  Cal.  532,  16  Pac.  Rep.  325;  but 
see  Smith  v.  Solomon,  84  Cal.  537,  539,  24  Pac.  Rep.  286;  Russ  L.  Co. 
V.  Garrettson,  87  Cal.  589,  596,  25  Pac.  Rep.  747;  Clark  v.  Taylor,  91 
Cal.   552,   555,   27   Pac.   Rep.   860. 


773  COSTS  AND  attorneys'  fees.  §  943 

some  resemblance  to  costs,  as  it  is  an  incident  to  the  judg- 
ment.^* 

§  943,  Same.  Measure  of  attorneys'  fees.  The  general 
rule  with  reference  to  attorneys'  fees  permitted  under  pro- 
visions relative  to  the  liens  of  mechanics  and  others  for  labor 
performed  upon  or  materials  furnished  for  improvements  on 
real  property  is,  that  the  court  may  allow  a  reasonable  attor- 
ney's fee  ^^  to  each  of  the  lien  claimants  whose  lien  is  estab- 

-*  Rapp  V.  Spring  Valley  G.  Co.,  74  Cal.  532,  16  Pac.  Rep.  325; 
Mclntyre  v.  Trautner,  supra;  Schallert-Ganahl  L.  Co.  v.  Neal,  supra. 
Colorado.  Under  Stats.  1893,  p.  315,  no  attorney's  fee  can  be 
allowed,  under  the  language  of  the  statute,  unless  judgment  of  fore- 
closure is  obtained:  Los  Angeles  G.  M.  Co.  v.  Campbell,  13  Colo.  App. 
455,  56  Pac.  Rep.  246. 

Oregon.     Title  G.  &  T.  Co.  v.  Wrenn,  35  Greg.  62,   56  Pac.  Rep.   271. 

^  Attorneys'  fee.s  held  properly  alloived  and  reasonable  in  the  fol- 
lowing eases:  Amount  recovered,  $74:  attorney's  fee.  $50:  Hagman 
V.  Williams,  88  Cal.  146,  25  Pac.  Rep.  1111.  Amount  recovered,  $483.72; 
attorney's  fee,  $100:  Scammon  v.  Denio,  72  Cal.  393,  397,  14  Pac.  Rep. 
98.  Amount  recovered,  $147.21;  increased  by  supreme  court  to  $672.21; 
attorney's  fee,  $50:  Schallert-Ganahl  L.  Co.  v.  Neal,  91  Cal.  362,  3g6, 
27  Pac.  Rep.  742.  Amount  recovered,  $1,070;  attorney's  fee  allowed. 
$175:  See  Covell  v.  Washburn,  91  Cal.  560,  562,  27  Pac.  Rep.  859. 
Amount  recovered,  $100;  attorney's  fee,  $50:  Clancy  v.  Plover,  107 
Cal.  272,  274,  40  Pac.  Rep.  394.  Amount  recovered,  aggregating  $750; 
two  attorneys,  fees  of  $25  and  $75:  Stimson  M.  Co.  v.  Riley  (Cal., 
Dec.  20,  1895),  42  Pac.  Rep.  1072  (the  supreme  court  saying,  "While 
the  sums  allowed  seem  ratlier  small,  we  cannot  say  that  the  court 
abused  its  discretion  in  determining  that  $75  was  a  reasonable  fee  "). 
Amount  recovered,  $691.20;  attorney's  fee  allowed,  $100:  Mulcahy  v. 
Buckley,  100  Cal.  484,  490,  35  Pac.  Rep.  144.  Amount  recovered,  $67.50; 
attorney's  fee  allowed,  $25:  Anderson  v.  Johnston,  120  Cal.  657,  658, 
53   Pac.   Rep.   264. 

"Reasonable  attorneys'  fee.s,"  amounts  not  mentioned:  Jewell  v. 
McKay,  82  Cal.  144,  152,  23  Pac.  Rep.  139;  Western  L.  Co.  v.  Phillips. 
94  Cal.  54,  29  Pac.  Rep.  328;  Bates  v.  Santa  Barbara  County,  90  Cal. 
543,  548,  27  Pac.  Rep.  438;  Rapp  v.  Spring  Valley  G.  Co.,  74  Cal.  532, 
536,  16  Pac.  Rep.  325;  Chivell  v.  Spring  Valley  G.  Co.,  16  Pac.  Rep. 
328;  Castagnetto  v.  Coppertown  M.  &  S.  Co.,  146  Cal.  329,  334,  80  Pac. 
Rep.  74  (seventy-five  cents  for  each  of  twelve  separate  liens,  total 
$900;   nothing   in    the   record   to   show   tliat   it    was   unreasonable). 

Court  should  uot  flx  fee  at  unreasonably  small  or  insutlieieul 
amount:  Stimson  M.  Co.  v.  Riley  (Cal.,  Dec.  20,  1895),  42  Pac.  Rep. 
1072. 

Attorneys'  fees  not  exeesslve  in  consolidated  case:  See  Sweeney  v. 
Meyer,   124   Cal.   512,   57  Pac.   Rep.  479. 

Colorado.  Four  hundred  dollars  for  foreclosing  sixteen  mechanics' 
liens,  aggregatint,"  $1,919;  judgment  by  default;  held  excessive:  Los 
Angeles  G.  M.  Co.  v.   Campbell,  13  Colo.  App.   1,  56  Pac.   Rep.   246. 

Idaho.  Amount  recovered,  $257.83;  attorney's  fee,  $100  in  lower 
court:    Huber  v.  St.  Joseph's  Hospital,  11  Idaho  631,  83  Pac.  Rep.  768. 


§  943  mechanics'  liens.  774 

lished,  for  services  in  the  superior  and  supreme  courts.^® 
The  amounts  are  to  be  fixed  by  the  lower  court,  irrespective 
of  any  averment  in  the  complaint ;  -^  but,  on  the  other  hand, 
it  has  been  held,  more  recently,  that  a  judgment  for  attor- 
neys' fees  in  excess  of  that  claimed  in  the  complaint  cannot 
be  sustained.^®  The  court,  however,  is  not  bound  by  testi- 
mony touching  the  value  of  attorneys'  services  in  suits  of 
this  nature.^^ 

New  Mexico.  Amount  recovered,  $232.40;  attorney's  fee,  $100. 
Amount  recovered,  $3,790.24;  attorneys'  fees,  $500:  Genest  v.  Las 
Veg-as  M.  B.  Assoc,  11  N.M.  251,  67  Pac.  Rep.  743,  745. 

Oregon.  Amount  recovered,  $85.75;  attorney's  fee,  $20:  Lewis  v. 
Beeman,  46  Oreg.  311,  80  Pac.  Rep.  417.  Judgment,  $220;  attorney's 
fee  allowed,  $50:  Cline  v.  Shell,  40  Oreg-.  372,  73  Pac.  Rep.  12, 
Amounts  recovered,  $193.05  and  $325;  attorneys'  fees,  $25  and  $70, 
respectively:  Fitch  v.  Hewitt,  32  Oreg.  390,  52  Pac.  Rep.  192.  Amount 
recovered,  $559.89;  attorney's  fee,  $75:  Harrisburg  L.  Co.  v.  Washburn, 
29  Oreg.  150,  169,  44  Pac.  Rep.  390;  Forbes  v.  Willamette  Falls  E.  Co., 
19  Oreg.  61,  23  Pac.  Rep.  670,  20  Am.  St.  Rep.  793  ($10  each  for  fifteen 
liens).  See  Title  G.  &  T.  Co.  v.  Wrenn,  35  Oreg.  62,  56  Pac.  Rep.  271, 
76  Am.   St.  Rep.   454    ($250). 

Washington.  Amount  claimed,  $21,000;  fee,  $2,000;  excessive; 
sjiould  be  $1,000  or  less:  See  Fairhaven  L.  Co.  v.  Jordan,  5  Wash. 
729,  736,  32  Pac.  Rep.  729;  Seattle  and  Walla  W^alla  R.  Co.  v.  All  Kowe. 
2  Wash.  Ter.  36,  3  Pac.  Rep.  188.  Amount  recovered,  $75.58;  attorney's 
fee,  $50;  excessive,  in  absence  of  evidence:  Lee  v.  Kimball  (Wash., 
March  12,  1907),  88  Pac.  Rep.  1121.  Amount  recovered,  $4,328;  at- 
torney's fee,  $400:  Lavanway  v.  Cannon,  36  Wash.  593,  79  Pac.  Rep. 
1117. 

Attorney's  fee  reduced  from  $100  to  $50;  contest  concerning  $73: 
Llttell   V.   Saulsberry,   40   Wash.    550,    82   Pac.   Rep.    909. 

Attorney's  fee  based  on  items  contested,  and  reduced:  See  Littell 
V.  Saulsberry,  40  Wash.   550,  82  Pac.  Rep.   909. 

-0  Kerr's  Cyc.   Code  Civ.  Proc,   §  1195. 

Montana.  In  district  court,  but  not  in  supreme  court:  Murray  v. 
Swanson,  18  Mont.  533,  46  Pac.  Rep.  441.  See  Wortman  v.  Klein- 
schmidt,    12    Mont.    316,    30    Pac.    Rep.    280    (1889). 

='  Clancy  v.  Plover,  107  Cal.  272,  274,  40  Pac.  Rep.  394;  Pacific  Mut. 
L.  Ins.  Co.  V.  Fisher,  106  Cal.  224,  234,  39  Pac.  Rep.  758:  Mulcahy  v. 
Buckley,   100   Cal.   484,   490,   35   Pac.   Rep.    144. 

See   "  Complaint,"    §§  670   et   seq.,   ante. 

Colorado.  Judgment  for  attorneys'  fees,  without  evidence  of  the 
services  performed  and  their  value,  under  the  law  of  1893,  cannot  be 
sustained:  Burleigh  B.  Co.  v.  Merchant  B.  &  B.  Co.,  13  Colo.  App. 
455,  59  Pac.  Rep.   83,  87. 

2s  Skym  V.  Weske  Cons.  Co.  (Cal.,  Dec.  18,  1896),  47  Pac.  Rep.  116 
(decided  Dec.  18,  1896),  appears  impliedly  to  overrule,  or  at  least  dis- 
tinguish, the  earlier  cases  of  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  106 
Cal.  224,  234,  39  Pac.  Rep.  758  (decided  March  8,  1895),  and  Clancy  v. 
Plover,  107  Cal.  273,  274,.  40  Pac.  Rep.  394  (decided  May,  1895),  without 
expressly   distinguishing   or   even   noticing   them. 

^  In  this  connection,  the  supreme  court  has  said:  "  W^e  think, 
therefore,  that  the  failure  of  the  plaintiff  to  produce  evidence  on  the 
question  does  not  affect  the  validity  of  the  judgment  awarding  such 


I 


775  COSTS  AND  attorneys'  pees.  §§  944, 945 

§  944,  Same.  Relation  of  legal  services  to  action.  Attor- 
neys' fees  paid  by  a  party  can  be  recovered  from  the 
defeated  party  only  in  exceptional  cases,  of  which  the  action 
to  enforce  a  mechanic's  lien  is  one ;  ^°  but  the  exception  pro- 
vided for  in  this  class  of  cases  does  not  extend  to  fees  for 
services  not  pertaining  to  such  action  "  in  the  superior  "  or 
"  supreme  court."    Thus  — 

Preparing  of  claim  of  lien  to  be  recorded  is  no  more 
nearly  related  to  the  action  to  foreclose  the  lien  than  is 
the  drafting  of  the  contract  for  the  performance  of  the 
labor  upon  which  such  action  may  be  partly  founded.^^ 

§  945.  Same.  Agreement  as  to  fees.  And  the  court  has 
held  that  it  is  not  necessary  to  the  allowance  of  the  attor- 
ney's fee  that  the  plaintiff  should  have  actually  paid  or 
expressly  agreed  to  pay  one  to  his  attorney;  an  implied 
agreement  is  sufficient.  "  If,  indeed,  it  had  appeared  that 
the  attorney  had  expressly  agreed  to  give  his  services  for 
nothing,  or  if  he  were  an  emploj^ee  of  the  plaintiff  at  a 
yearly  salary,  as  was  the  case  in  Bank  of  Woodland  v. 
Treadwell  ^-  [for  the  foreclosure  of  a  mortgage],  then  the 
plaintiff  might  not  be  entitled  to  an  allowance  for  attor- 
ney's fee.  But  where  there  is  an  implied  agreement  for 
the  payment  of  the  attorney,  or  where,  as  here,  there  is  an 
express  agreement  that  for  services  prior  to  the  recording 
of  the  liens,  the  attorney  shall. receive  five  per  cent  upon  the 
amount  collected,   and  for  subsequent  services  '  only  such 

fees:  See  opinion  of  Harrison,  .!.,  in  Watson  v.  Sutro,  103  Cal.  169, 
37  Pac.  Rep.  201;  Rapp  v.  Spring  Valley  G.  Co.,  74  Cal.  532,  16  Pac. 
Rep.  325.  No  doubt,  such  evidence  is  admissible,  and  may  properly 
be  considered  by  the  court,  but  its  absence  in  the  record  on  appeal 
is  not  a  circumstance  requiring  a  reversal,  unless  it  appear  from  an 
Inspection  of  the  record,  and  without  evidence  to  sustain  it,  that  the 
fee  fixed  by  the  court  is  unreasonable,  which  is  not  claimed  in  this 
Instance":  Clancy  v.  Plover,  107  Cal.  272,  275,  40  Pac.  Rep.  394.  See 
Castag-netto  v.  Coppertown  M.  &  S.  Co.,  146  Cal.  329,  334,  80  Pac.  Rep. 
74. 

\Vashington.  Evidence  as  to  attorneys'  fees  seems  to  be  necessary: 
Wheeler  &  Co.  v.  Ralph,  4  Wash.  617,  30  Pac.  Rep.  709;  Cowle  v. 
Ahrenstedt,   1  Wash.  416,   420,   25   Pac.   Rep.   458. 

50  Mulcahy  v.  Buckley,  100  Cal.  484,  490,  35  Pac.  Rep.   144. 

Montana.     See  Murray  v.   Swanson,  18  Mont.   533,  46  Pac.   Rep.   441. 

»i  Mulcahy  v.  Buckley,  100  Cal.  484,  490,  35  Pac.  Rep.  144. 

«  55  Cal.  379. 


§  946  mechanics'  liens.  776 

fee  as  the  court  would  allow,'  it  seems  clear  that  plaintiff  is 
entitled  to  an  allowance  for  attorneys'  fees.  The  court 
would  not  be  bound  by  an  agreement  between  plaintiff  and 
his  attorney  as  to  amount,  but  must,  under  the  code,  allow 
such  amount  as  is  reasonable."  ^^ 

Stipulation  not  excluding  attorneys'  fees.  A  stipulation 
that  an  individual  named  should  ascertain  and  fix  the  amount 
due  to  each  of  the  plaintiffs,  and  "  upon  such  ascertainment 
that  judgment  shall  accordingly  be  entered,"  does  not  pre- 
vent the  claimant  from  recovering  any  attorneys'  fees  which 
may  be  properly  allowed  by  the  court. ^* 

§  946.  Same.  Lower  court  fixing  attorneys'  fees  in 
supreme  court.  It  has  been  held  that  the  superior  court 
has  exclusive  power  to  allow  the  claimant  a  reasonable  attor- 
ney's fee  for  services  in  the  supreme  court,  notwithstand- 
ing Rule  XXIV  of  that  court  provides  that  costs  be  awarded 
to  appellants  in  cases  where  the  judgment  or  order  appealed 
from  is  reversed  or  modified ;  and  the  supreme  court  has  not 
the  power  to  order  any  amount  to  be  paid  as  such  fee,  and 
such  an  order  is  not  binding  upon  the  lower  court ;  ^^  and 
the  supreme  court  will  make  no  direction  to  the  lower  court 
respecting  the  allowance  of  attorneys'  fees.^® 

33  Rapp  V.  Spring  VaUey  G.  Co.,  74  Cal.  532,  534,  16  Pac.  Rep.  325; 
Chivell  V.  Spring  Valley  G.  Co.  (Cal.,  Jan.  25,  1888),  16  Pac.  Rep.  328. 

Washington.  "  A  statutory  attorney's  fee  will  not  be  allowed  in 
addition  to  the  fee  provided  for  in  a  contract;  neither  do  we  think 
it  can  be  allowed  in  addition  to  the  fee  allowed  for  the  foreclosure": 
Bolster  v.   Stocks,   13  Wash.   460,   43  Pac.   Rep.   532,   534,  1099. 

3^  Rapp   V.  Spring  Valley  G.  Co.,   74  Cal.   532,   534,  16  Pac.  Rep.   325. 

35  Schallert-Ganahl  L.  Co.  v.  Neal,  94  Cal.  192,  193,  29  Pac.  Rep.  622. 

L.o»ver  court  to  fix  attorneys'  fees:  Sweeney  v.  Meyer,  124  Cal.  512, 
516,  57  Pac.  Rep.  479;  San  Joaquin  L.  Co.  v.  Welton,  115  Cal.  1,  46  Pac. 
Rep.    735,   1057. 

Discretion  o£  lower  court  as  to  attorneys'  fees  not  disturbed  on 
appeal,  except  for  abuse:  Sweeney  v.  Meyer,  124  Cal.  512,  515,  57 
Pac.   Rep.   479. 

Application  for  attorneys'  fees  in  supreme  court  to  be  made  in 
lower  court:    See  Williams  v.   Gaston,   127   Cal.    641,   60  Pac.  Rep.   427. 

Montana.  Attorney's  fee  for  services  in  appellate  court  to  be  fixed 
by  district  court  on  return  of  remittitur:  Hill  v.  Cassidy,  24  Mont. 
108,  60  Pac.  Rep.   811. 

3«  San  Joaquin  L.  Co:  v.  Welton,  115  Cal.  1,  46  Pac.  Rep.  735,  1057; 
Evans  v.  Judson,  120  Cal.  282,  285,  52  Pac.  Rep.  585.  In  West  Coast 
L.  Co.  V.  Newkirk,  80  Cal.  275,  281,  22  Pac.  Rep.  231,  the  supreme 
court  ordered  the  lower  court,   on  the  going  down  of  the  remittitur, 


777  COSTS  AND  attorneys'  fees.  §  9-17 

§  947.  Same.  When  owner  not  liable  for  attorneys'  fees. 
Where  the  only  question  raised  by  the  answer  of  a  land- 
owner in  an  action  to  enforce  mechanics'  liens  is  decided  in 
his  favor,  it  is  improper  to  impose  a  lieu  upon  his  laud  for 
attorneys'  fees,  in  addition  to  the  balance  due  on  a  valid 
original  contract,  unless  the  answer  was  interposed  to  delay 
and  harass  the  lien  claimants.^" 

to  aUow  plaintiff,  respondent,  under  Code  Civ.  Proc,  §  1195,  a  reason- 
able attorney's  fee  in  the  supreme  court,  and  this  case  was  mentioned 
in  Schallert-Ganahl  L.  Co.  v.  Neal,  supra.  See  Mulcahy  v.  Buckley, 
100  Cal.  484,  490,  35  Pac.  Rep.  144.  And  the  lower  court  had,  previous 
to  the  rule  established,  as  stated  in  the  text,  been  ordered  to  allow, 
"as  additional  costs"  (Russ  L.  Co.  v.  Garrettson,  87  Cal.  589,  596.  25 
Pac.  Rep.  747;  Smith  v.  Solomon,  84  Cal.  537,  539,  24  Pac.  Rep.  286). 
or  "as  part  of  their  costs  on  this  appeal"  (Harlan  v.  Stufflebeem,  87 
Cal.  508,  513,  25  Pac.  Rep.  686;  Clark  v.  Taylor,  91  Cal.  552,  555,  27 
Pac.  Rep.  860),  a  reasonable  attorney's  fee  for  services  of  the  attorney 
for  respondent. 

W'^asbington.  Another  attorney's  fee  not  allowed  on  appeal:  See 
Lavanway   v.   Cannon,   37   Wash.   593,   79   Pac.   Rep.    1117. 

"  Hooper  v.  Fletcher,  145  Cal.  375,  378,  79  Pac.  Rep.  418. 

See   §  934,  ante. 


§948. 

Sale. 

§949. 

Same. 

§950. 

Same. 

§951. 

Same. 

§952. 

Same. 

§953. 

Same. 

§954. 

Right 

§955. 

Same. 

948  mechanics'  liens.  778 


CHAPTER   XLIV. 

SALE    AND    REDEMPTION. 

In  general. 

Manner  of  executing  judgment. 
"  Writ  "  not  an  "  execution." 
Time  of  sale. 

Application  of  proceeds  to  junior  executions. 
Sale  of  leasehold  interest, 
of  redemption. 
Redemption   by   subsequent  mortgagee   not   made   a 
party. 

§  948.  Sale.  In  general.^  The  provisions  of  part  two  of 
the  Code  of  Civil  Procedure  of  California,  with  reference 

1  See  "Decree,"  §§930  et  seq.,  ante. 

Colorado.  As  on  executions:  Keystone  M.  Co.  v.  Gallagher,  5 
Colo.   23   (1872):   San  Juan  Co.  v.   Finch,   6  Colo.   214. 

Void  order  of  sale,  directing  distribution  of  proceeds  pro  rata: 
Bassick  M.  Co.  v.  Schoolfleld,  10  Colo.  46,  14  Pac.  Rep.  65  (under  Gen. 
Stats.,  §  2155),  reviewed  in  Staples  v.  Ryan,  62  Fed.  Rep.  635,  holding 
that  the  sale  was  not  void,  on  the  gound  that  by  such  sale  the  person 
claiming  a  lien  against  only  a  portion  of  the  property  shared  in  the 
proceeds  of  the  whole  property  of  which  his  complaint  did  not  give 
the   court  jurisdiction,   but  that   it  might  be  voidable. 

As  to  buying  property  in  under  foreclosure  sale  not  being  "  pay- 
ment," see  Orman  v.   Ryan,   25   Colo.   383,   55  Pac.  Rep.  168. 

Impeaching  record;  publication  of  notice  of  sale:  See  Ryan  v. 
Staples,  76  Fed.  Rep.  721,  23  C.  C.  A.  541,  affirming  s.  c.  62  Fed.  Rep. 
635. 

Execution  on  personal  judgment:  Finch  v.  Turner,  21  Colo.  287, 
40  Pac.  Rep.  565. 

Order  marshaling  asset.s  of  sale  of  land  and  building:  See  Joral- 
mon  V.  McPhee,  31  Colo.  26,  71  Pac.  Rep.  419,  423. 

Montana.  Personal  judgment  against  husband  only,  in  action  to 
foreclose  lien  against  husband  and  wife;  enjoining  sale:  See  Alex- 
ander V.  Fransham,  26  INIont.  496,  68  Rep.  945.  See  Vantilburgh  v. 
Black,    2   Mont.    371. 

New  3Iexico.  Publication  of  notice  of  sale:  See  Neher  v.  Craw- 
ford,  10  N.  M.  725,   65  Pac.  Rep.  156. 

Oregon.  As  to  sale  of  lot  separate  from  building,  and  application 
of  proceeds  to  the  payment  of  a  prior  mortgage,  and  surplus, 
together  with  proceeds  of  sale  of  building,  applied  to  the  satisfaction 
of  mechanics'  liens,  see  Smith  v.  Wilkins,  38  Oreg.  588,  64  Pac.  Rep. 
761,   s.   c.    31   Oreg.   421,   51   Pac.   Rep.    438.. 

General  execution:  Kendall  v.  McFarland,   4  Oreg.   293. 

Utah.  Sale  and  removal  of  building  from  lot:  See  Sanford  V. 
Kunkel,   30  Utah   379,   85  Pac.  Rep.  363,  1012. 


H 


779  SALE    AND   REDEMPTION.  §  949 

to  sale,^  are  generally  applicable  to  the  foreclosure  of  liens 
for  labor  performed  upon  or  materials  furnished  for  improve- 
ments on  real  property.^ 

§  949.  Same.  Manner  of  executing  judgment.  In  refer- 
ence to  this  matter,  the  court  has  said:  "  The  code  provis- 
ions relating  to  the  foreclosure  of  mechanics'  liens  provide 
no  mode  of  enforcing  the  judgment,  other  than  by  a  sale 
of  the  property  and  docketing  a  deficiency  judgment  against 
the  defendant  who  may  be  liable  therefor;  and  in  Phillips 
on  Mechanics'  Liens,  section  four  hundred  and  fifty-eight,  it 
is  said :  '  The  execution  to  be  issued  for  the  enforcement 
of  the  lien  is  generally  provided  for  by  express  enact- 
ment. .  .  .  Unless  otherwise  provided,  the  execution  is 
always  special  against  the  particular  property  encumbered 
with  the  lien.'  I  conclude,  therefore,  that  an  execution  as 
upon  a  mere  personal  judgment  could  not  have  been  issued 
and  levied  upon  the  property  of  the  defendant  [owner  of 
a  leasehold  interest],  had  the  undertaking  in  question  not 
been  given,  unless  by  direction  of  the  court,  upon  a  show- 
As  to  sale  of  different  parcels  subject  to  different  rigrlits  of  claim- 
ants, see  Sanford  v.  Kunkel,   30  Utah   379,   85   Pac.   Rep.   363,   1012. 

Sale  upon  subsequent  decree  upon  reinstating  one  of  several 
separate  claims,  dismissed,  sale  having  been  decreed  upon  the  other: 
Venard  v.  Green,  4  Utah  67,  sub  nom.  Venard  v.  Old  Hickory  M. 
Co.,   6  Pac.   Rep.  415,   7  Pac.  Rep.  408. 

'  \Vashingrton.  Injunction  will  not  lie  to  restrain  the  sale  of  com- 
munity real  estate  against  whicli  a  decree  of  sale  had  been  entered 
in  a  proceeding  for  the  foreclosure  of  a  mechanic's  lien  to  whicli  the 
owner's  wife  had  not  been  made  a  party,  her  rights  not  being 
affected  by  the  judgment,  and  the  judgment  not  being  void:  Turner 
V.  Bellingham  Bay  L.  &  M.  Co.,  9  Wash.  484,  37  Pac.  Rep.  674;  since, 
in  the  mechanic's-lien  case,  the  limit  of  time  is  very  short  for  the 
commencement  of  the  action,  and  the  issuance  of  the  injunction 
would  have  the  effect  to  defeat  forever  the  lien,  and  a  court  of  equity 
ought  to  interfere  on  behalf  of  parties  only  whose  riglits  can  be 
fully  protected  in  the  manner  pointed  out.  and  the  issuance  of  the 
injunction  being  in  the  sound  discretion  of  tlie  court:  Concurring 
opinion  of  Stiles,  J.,  in  Harrington  v.  Johnson,  10  Wash.  545.  39 
Pac.  Rep.  141.  As  to  enjoining  sale,  althougli  judgment  is  void,  see 
also  Quinby  v.  Slipper,  7  Wash.  475,  35  Pac.  Rep.  116,  38  Am.  St. 
Rep.    899. 

General  creditor  foreclosing  Hen;  general  execution  for  balance 
unsatisfied:     See    Marks    v.    Pence,    31    Wash.    426,    71    Pac.    Rep.    1096. 

*  See  Kerr's  Cyc.  Code  Civ.  Proc,  §§  681  et  seq.,  and  notes. 

»  Kerr's   Cyc.  Code   Civ.  Proc,   §  1189. 


§§  950, 951  mechanics'  liens.  780 

ing  that  the  property  upon  which  the  lien  was  adjudged 
was  no  longer  available,  and  that  the  bond  given  did  not 
operate  to  stay  the  enforcement  of  the  lien  upon  the  prop- 
erty described  in  the  judgment,"  * 

§  950.  Same.  "  Writ "  not  an  "  execution."  The  only 
process  allowed  in  the  state  of  California  for  the  enforcement 
of  a  judgment  foreclosing  a  lieu  upon  specific  property  is 
that  laid  down  by  section  six  hundred  and  eighty-four,^  pro- 
viding that  when  a  judgment  requires  the  sale  of  property, 
the  same  may  be  enforced  by  a  writ  reciting  the  judgment, 
or  the  material  parts  thereof,  and  '  directing  execution 
thereof  by  the  sale.  This  "  writ "  is  neither  styled  an  "  exe- 
cution," within  the  meaning  of  section  six  hundred  and 
eighty-three,"  nor  is  it  such  in  its  nature,  and  the  require- 
ment of  the  section  last  cited,  that  the  "  execution  "  be  made 
returnable  within  sixty  days,  is  inapplicable.  Hence  where 
the  sheriff  sells  the  property  after  the  return-day  of  the  writ, 
in  the  absence  of  some  showing  that  injury  has  resulted  from 
delay  in  making  the  sale,  it  will  not  be  set  aside  nor  held 
invalid.'^ 

§  951.  Same.  Time  of  sale.  Where  the  sheriff  sells  prop- 
erty under  an  execution  after  the  return-day,  it  is  not  invalid, 
if  the  levy  was  made  during  the  lifetime  of  the  writ;  and 
the  same  reasoning  upholds  a  sale  after  the  return-day  of 
a  writ  issued  under  an  order  of  sale,  or  in  cases  where  no 
levy  is  required.*  The  court  having  the  right  to  subject  the 
property  to  a  sale  for  the  satisfaction  of  a  decree  foreclos- 
ing a  mechanic's  lien,  and  having  at  all  times  control  of 
its  process  to  prevent  it  from  becoming  a  source  of  injury, 
the  time  within  which  such  sale  is  directed  to  be  made  is 

*  Central  L.  &  M.  Co.  v.  Center,  107  Cal.  193,  197,  40  Pac.  Rep. 
334. 

Colorado.     See  Finch  v.   Turner,   21  Colo.   287,  40  Pac.   Rep.   565. 

B  Kerr's  Cyc.  Code  Civ.  Proc,  §  684. 

6  Kerr's  Cyc.  Code  Civ.  Proc,   §  683. 

'  Southern  Cal.  L.  C9.  v.  Ocean  Beach  H.  Co.,  94  Cal.  217,  29  Pac. 
Rep.    627,    28   Am.   St.    Rep.    115. 

s  Southern  Cal.  L.  Co.  v.  Ocean  Beach  H.  Co.,  94  Cal.  217,  29  Pac. 
Rep.   627,   28   Am.   St.   Rep.    115. 


781  SALE   AND    REDEMPTION,  §  952 

but  directory,  and  under  the  control  of  the  court;  and,  in 
the  absence  of  a  showing  of  injury,  a  sale  should  not  be 
set  aside,  merely  because  it  was  not  made  before  the  return- 
day  of  the  writ.'' 

The  deed  at  the  sale,  by  relation,  takes  effect  as  of  the 
time  when  the  lien  attached.^" 

§  952.  Same.  Application  of  proceeds  to  junior  execu- 
tions. As  a  general  proposition,  if  an  execution  be  levied 
upon  a  sufficient  amount  of  personal  property  to  satisfy 
it  in  full,  such  a  levy  is  equivalent  to  satisfaction.  This  is 
not  true,  however,  as  in  favor  of  a  judgment  debtor,  in  a 
case  where  he  had  subsequently  withdrawn  the  property 
levied  upon,  either  with  or  without  the  consent  of  the  plain- 
tiff in  execution;  so,  too,  where  the  levy  had  been  subse- 
quently relinquished  by  his  consent,  so  as  to  allow  other  and 
junior  liens  to  be  satisfied.  Hence  where  judgments  on  me- 
chanics' liens  are  situated  in  time  between  prior  and  subse- 
quent judgments,  and  a  levy  under  execution  on  the  prior 
judgments  is  made  on  personal  property  sufficient  to  satisfy 
it,  and  levies  under  executions  on  the  subsequent  judgments 
are  then  made,  and  the  plaintiff's  attorney  in  tlie  prior  judg- 
ments directs  that  the  fund  be  applied  in  part  to  satisfy  judg- 
ments junior  to  the  mechanics'  liens,  the  senior  judgment  Avill 
be  considered  satisfied  as  against  such  mechanics'  liens.^^ 

Purchaser  having  notice  of  facts  affecting  priorities. 
Where  a  sale  of  real  estate  under  execution  is  made  nomi- 
nally to  a  third  person,  with  a  view  of  complicating  the  pro- 
ceedings, but  really  to  a  defendant,  a  judgment  creditor  in 
another  action,  who  makes  application  of  the  sum  due  on 
his  judgment  in  payment  on  the  sale,  the  third  person  will 
be  considered  to  have  notice  of  all  the  facts  touching  the 
ranking  or  priorities  of  junior  and  senior  judgments,   and 

«  Southern  Cal.  L.  Co.  v.  Ocean  Beach  H.  Co.,  94  Cal.  217,  29  Pac. 
Rep.    627,   28   Am.   St.   Rep.    115. 

w  Purser  v.  Cady    (Cal.,  June   17,   1897),   49   Pac.   Rep.   180. 

Deed:  Finch  v.  Turner,  21  Colo.  287,  40  Pac.  Rep.  565.  And  is 
paramount  to  all  encumbrances  put  upon  the  property  after  the  com- 
mencement of  the  work:  Cornell  v.  Conine-Eaton  L.  Co.,  9  Colo. 
App.   225,  235,   47  Pac.  Rep.  912. 

"  Barber  v.   Reynolds,   44   Cal.   519,   534. 


§§  953-955  mechanics'  liens,  782 

sales   thereunder,    of   which    such    judgment    creditor   had 
knowledge.^^ 

§  953.  Same.  Sale  of  leasehold  interest.  It  is  possible 
that  the  owner  of  the  fee,  where  a  building  is  erected  by  a 
lessee  with  the  knowledge  but  without  objection  of  the 
owner,  under  section  eleven  hundred  and  ninety-two, ^^  may 
be  entitled  to  have  the  leasehold  interest  first  sold  to  sat- 
isfy the  lien,  if  he  asks  for  such  sale ;  ^*  but  where  the  lease 
has  expired,  or  has  not  been  renewed,  there  is  no  interest 
of  the  lessee  to  be  sold.^^ 

§  954.  Right  of  redemption.  The  decree  in  an  action  to 
enforce  mechanics'  liens  cannot  absolutely  bar  and  foreclose 
the  owner  of  all  right  and  equity  of  redemption  of  the  prem- 
ises, but  from  and  after  the  delivery  of  the  sheriff's  deed 
after  the  sale,  as  provided  in  the  decree.^* 

§  955.  Same.  Redemption  by  subsequent  mortgagee  not 
made  a  party.  A  subsequent  mortgagee  would  have  a  right, 
in  a  proper  case,  to  redeem  the  premises  from  the  sale  under 
a  judgment  on  the  lien,  by  paying  the  money  justly  due, 
interest,  costs,  etc.,  even  when  he  had  not  been  a  party  to 
the  suit  by  the  lien-holder.^'^ 

"  Barber  v.    Reynolds,    44   Cal.    519,    534. 

Oregon.  Contra,  under  act  of  1874:  Inverarity  v.  Stowell,  10  Oreg. 
261:  there  being-  no  express  provision  allowing-  the  sale  of  the  im- 
provements.    See  Willamette  Falls   Co.   v.   Riley,   1   Oreg.    183. 

"  Kerr's   Cyc.    Code   Civ.   Proo.,    §  1192. 

1*  "West  Coast  L.   Co.  v.   Apfield,    86   Cal.   335,    340,    24   Pac.   Rep.    993. 

Colorado.  Sale  of  improvements,  -n-here  there  is  a  prior  encum- 
brance: Bitter  v.  Mouat  L.  &  I.  Co.,  10  Colo.  App.  307,  51  Pac.  Rep. 
519.      See   Church   v.   Smithea,   4   Colo.   App.    175,    35   Pac.  Rep.    267. 

^'  Evans  v.   Judson,   120   Cal.    282,    285.    52   Pac.    Rep.    585. 

"  Castag-netto  v.  Coppertown  M.  Co.,  146  Cal.  329,  334,  80  Pac.  Rep. 
74. 

Colorado.  Right  of  redemption  of  stranger  to  -writ  of  error,  who 
holds  another  judgment:  See  Ryan  v.  Staples,  76  Fed.  Rep.  721,  23 
C.  C.  A.   541,  affirming  Staples  v.  Ryan,   62  Fed.  Rep.   635. 

"  Gamble  v.  Voll,  15  Cal.  508,  510.  See  Kerr's  Cyc.  Code  Civ. 
Proo.,  §§  701   et  seq. 

Montana.  Right  of  purchaser  at  sale  to  remove  improvements: 
Grand  Opera  House  Co!  v.  McGuire,  14  Mont.  558,  37  Pac.  Rep.  607. 
It  is  not  affected  by  the  fact  that  the  removal  would  involve  great 
loss:     Id.      Redemption:    See   Mason   v.   Germaine,    1    Mont.    269    (1865). 

Oregon.  Redemption;  priority  of  mortgage:  See  Gaines  v.  Childers, 
38  Oreg.   200,  63  Pac.  Rep.  487. 


783  APPEAL.  §  956 


CHAPTER    XLV. 

APPEAL. 

§  956.  Appeal.     In  general.     Statutory  provisions. 

§  957.  Error,  how  reviewed.     Exclusion  of  evidence. 

§  958.  Same.     Writ  of  review. 

§  959.  Parties  to  appeal. 

§  960.  Same.     Definition  of  adverse  party. 

§  961.  Same.     Appeal  from  judgment  denying  lien.     Death  of  one 

personally  liable. 

§  962.  Notice  of  appeal.     Contents.     Sale  of  property. 

§  963.  Same.     Personal  judgment  against  contractor. 

§  964.  Same.     Upon  whom  served. 

§  965.  Same.     Contractor  not  adverse  party. 

§  966.  Same.     Contractor  ^adverse  party.     Default. 

§  967.  Same.     Subsequent  mortgagee.     Injuriously  affected. 

§  968.  Same.     Beneficially  affected. 

§  969.  Same.     Who  need  not  be  served  with  notice  of  appeal. 

§  970.  Same.     Service  waived  by  stipulation. 

§  971.  Bond    for    costs.     Staying    judgment.     Lien    subordinate    to 

lien  foreclosed. 

§  972.  Stay  bond.     Lien  enforced. 

§  973.  Insufficient    record.     Compliance    with    specifications.     Void 

contract. 

§  974.  Presumptions  on  appeal.     In  general. 

§  975.  Same.     Extent  of  land. 

§  976.  Same.     Support  of  findings. 

§  977.  Same.     For  what  work  amount  found  due. 

§  978.  Same.     What  not  presumed  on  appeal. 

§  979.  What  not  involved.     Validity  of  deficiency  judgment  against 

contractor.     Appeal  by  owner. 

§  980.  Findings.     When  objections  not  considered. 

§  981.  Same.     On  appeal  from  order  denying  motion  for  new  trial. 

§  982.  Same.     Who  cannot  attack  findings.     General  creditors. 

§  983.  Harmless  error. 

§  984.  Same.     Sufficiency  of  claim  of  lien. 

§  985.  Objecting  on  appeal    for    first    time.     Contract    not    entirely 

filed. 

§  986.  Same.     Description  of  land. 

§  987.  Same.     Uncertainty  of  interest  in  property. 

§  988.  Consolidated  cases.     Hearing  on  appeal. 


§§  956, 957  mechanics'  liens.  784 

§  989.     Order  on  appeal.     New  trial. 

§  990.     Same.     New  trial.     When  sustained. 

§  991.     Same.     Attorneys'  fees. 

§  956.  Appeal.  In  general.^  Statutory  provisions.  Sec- 
tion eleven  hundred  and  ninety-nine  ^  provides :  "  The  pro- 
visions of  part  two  of  this  code  relative  to  new  trials  and 
appeals,^  except  in  so  far  as  they  are  inconsistent  with 
the  provisions  of  this  chapter,  apply  to  the  proceedings 
mentioned  in  this  chapter"  (on  mechanics'  liens).*  While 
the  provisions  of  the  statute  are  found  in  part  three,  entitled 
"  Special  Proceedings,"  yet  by  section  eleven  hundred  and 
ninety-eight  ^  the  provisions  of  part  two  relating  to  practice 
in  civil  actions  are  applicable,  except  where  changed  by  the 
chapter  on  mechanics'  liens.® 

§  957.    Error,  how  reviewed.    Exclusion  of  evidence.    The 

rulings  of  the  court  upon  the  exclusion  of  evidence  as  to 
the  extent  of  the  owner's  liability  under  a  valid  contract, 
which  has  been  abandoned  by  the  contractor,  may  be  pre- 

*  See,   generally,    "Findings,"    §§885    et   seq.,   ante. 

Law  of  the  case;  doctrine  expounded:  See  Tally  v.  Ganahl  (Cal. 
Sup.,  June  19,  1907),  90  Pac.  Rep.  1049.  See  Tally  v.  Parsons,  131  Cal. 
516,   63  Pac.   Rep.   833. 

As  to  "law  of  the  case,"  for  full  collection  of  cases  and  criticism, 
see  Kerr's  Cyc.  Code  Civ.  Proc,  §  53,  note  pars.   94-106. 

Separate  jiidgrnients,  mortgages,  and  mechanics'  liens;  apportion- 
ment of  costs  on  appeal:  See  McClain  v.  Hutton,  131  Cal.  132,  139,  63 
Pac.   Rep.   182,   622,   61  Id.   273. 

Colorado.  Rule  laid  down  by  state  courts  followed  by  Federal 
courts:  See  Ryan  v.  Staples,  76  Fed.  Rep.  721,  23  C.  C.  A.  541,  affirm- 
ing Staples  V.   Ryan,   62  Fed.  Rep.   635. 

Change  of  theory  as  to  the  basis  of  right  to  lien  not  to  be  made 
on  appeal;  lessor  corporation  and  lessee  corporation  practically  the 
same,  making  improvement:  See  Antlers  Park  Regent  M.  Co.  v. 
Cunningham,   29  Colo.   284,   68  Pac.  Rep.   226. 

New  Mexico.  Law  Of  the  case:  See  Armijo  v.  Mountain  E.  Co., 
11  N.  M.  235,   67  Pac.  Rep.  726. 

Oregon.  Decree  binding  as  to  those  not  appealing,  although 
modified  after  appeal  for  the  benefit  of  appellant:  Smith  v.  Wilkins, 
38   Oreg.    583,    64   Pac.    Rep.    760. 

=*  Kerr's  Cyc.  Code  Civ.  Proc,  §  1199. 

2  See  Kerr's  Cyc.  Code  Civ.  Proc,  §§936  et  seq.,  and  notes. 

*  New  Mexico.  See  Bucher  v.  Thompson,  7  N.  M.  115,  32  Pac.  Rep. 
498. 

=  Kerr's   Cyc.   Code   Civ.   Proc,    §  1198. 

«  See  "  Time,  Place,  and  Manner  of  Commencing  Actions,"  §§  649 
et  seq.,  ante;    "Practice,"   §§864   et  seq.,  ante. 


I 


785  APPEAL.  §§  958-960 

sented  by  a  bill  of  exceptions,  when  the  judgment  and  order 
denying  a  new  trial  are  appealed  from,  notwithstanding  that 
the  appeal  from  the  judgment  was  not  taken  within  sixty 
days.' 

§  958.  Same.  Writ  of  review.  A  writ  of  review  may 
be  granted  where  the  court  "  has  exceeded  the  jurisdiction 
of  such  tribuinal,  .  .  .  and  there  is  no  appeal,  nor,  in  the 
judgment  of  the  court,  any  plain,  speedy,  and  adequate 
remedy  " ;  but  erroneous  judgments  cannot  be  corrected  by 
this  writ,  where  the  court  had  jurisdiction  of  the  cause,  but 
error  must  be  corrected  by  appeal.^    Thus  — - 

Foreclosing  lien  on  land  and  fund.  The  Avrit  of  review 
will  not  lie,  where  an  action  is  brought  by  material-men 
against  the  owner  and  contractor  to  foreclose  a  lien  for  mate- 
rials furnished,  and  to  reach  funds  due  to  the  contractor 
in  the  hands  of  the  owner  of  the  l)uilding,  upon  the  ser- 
vice of  notice  as  prescribed  in  section  eleven  hundred  and 
eighty-four.^ 

§  959.  Parties  to  appeal.  In  order  to  confer  jurisdiction 
upon  the  court  to  entertain  an. appeal,  all  adverse  parties  — 
parties  to  the  controversy  whose  interests  would  be  injuri- 
ously affected  by  a  reversal  of  the  judgment  —  must  be 
brought  before  the  court,  under  section  nine  hundred  and 
forty.^'' 

§  960.  Same.  Definition  of  adverse  party.  An  adverse 
party  to  an  appeal  means  a  party  wliose  interest  in  relation  to 
the  subject  of  the  appeal  is  in  conflict  with  a  reversal  of  the 
order  or  the  decree  appealed  from,  or  the  modification  sought 
by  the  appeal. ^^ 

'  McDonald   v.   Hayes,   132    Cal.    490,    496,    64   Pac.    Rep.    S50. 

»  W^eldon  v.  Superior  Court,   138  Cal.   427,  429,   71   Pac.  Rep.   502. 

»  Weldon  v.  Superior  Court,   138  Cal.   427.   429.   71    Par.  Rep.   502. 

Colorado.  Decree  of  foreclosure  and  sale  of  property,  final  judg'- 
ment,  reviewable  upon  appeal  or  by  writ  of  error  by  owner,  even 
when  not  bound  by  personal  judgment:  Marean  v.  Stanley,  34  Colo. 
91,    81    Pac.    Rep.    759. 

"  Mannix    v.    Tryon    (Cal.    Sup.,    Sept.    19,    1907),    91    Pac.    Rep.    9S3. 

"  Mannix  v.  Tryon  (Cal.  Sup.,  Sept.  19,  1907),  91  Pac.  Rep.  9S3. 
See  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  106  Cal.  224,  39  Pac.  Rep.  758; 
Mecli.  Liiens  —  50 


§§961, 962  APPEAL.  786 

§  961.  Same.  Appeal  from  judgment  denying  lien. 
Death  of  one  personally  liable.  Where  the  appellant  was  a 
material-man,  who  recovered  a  personal  judgment  against 
the  contractor  and  subcontractor,  but  failed  to  establish  his 
lien,  and  the  appeal  was  from  the  judgment  denying  the 
lien,  the  fact  that  the  subcontractor  dies  does  not  prevent 
the  court  from  proceeding  with  the  appeal  until  some  one  is 
substituted  to  represent  the  subcontractor,  as  he  is  not 
interested  in  the  appeal;  nor  is  his  presence,  or  that  of  his 
representative,  necessary  to  a  full  determination  of  the 
appeal.^^ 

§  962.     Notice  of  appeal.^^     Contents.     Sale  of  property. 

Where  the  plaintiff,  in  his  notice,  appeals  from  that  por- 

RandaH  v.  Hunter,  69  Cal.  80,  82,  10  Pac.  Rep.  130;  Green  v.  Berge, 
105  Cal.  52,  38  Pac.  Rep.  539,  45  Am.  St.  Rep.  25;  Mohr  v.  Byrne,  132 
Cal.    250,    64    Pac.    Rep.    257. 

See  also  Kerr's  Cyc.  Code  Civ.  Proe.,  §  940,   note,  p.   1423. 

Colorado.  Owner  heard  on  appeal;  default  judgment  attacked; 
work  done  for  lessee:  See  Schwelzer  v.  Mansfield,  14  Colo.  App.  236, 
59    Pac.    Rep.    843. 

Appeal  taken  from  judgment  foreclosing  lien;  persons  against 
whom  personal  judgment  rendered  not  aggrieved:  See  Davidson  v. 
Jennings,  27  Colo.  187,  60  Pac.  Rep.  354,  83  Am.  St.  Rep.  49,  48  L.  R.  A. 
340. 

Oklalionia.  Unnecessary  parties  to  appeal:  See  Savage  v.  Dunkler, 
12  Okl.  463,  72  Pac.  Rep.  366;  Humphrey  v.  Hunt,  9  Okl.  196,  59  Pac. 
Rep.  971. 

"  Davies-Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641,  643,  22  Pac 
Rep.    860. 

"  Colorado.  Right  to  appeal;  consolidated  action:  Orman  v. 
Crystal  R.  R.  Co.,   5  Colo.  App.   493,   39  Pac.   Rep.   434. 

Oregon.  An  unperfected  appeal  does  not  exhaust  the  right  of 
appeal:  Osborn  v.  Logus,  28  Oreg.  302,  37  Pac.  Rep.  456,  38  Pac.  Rep. 
190,    42   Pac.   Rep.    997. 

W^aiver  of  appeal  by  attaching  property:  Ehrman  v.  Astoria  & 
P.   R.   Co.,   26   Oreg.   377,   38   Pac.   Rep.    306. 

AVasliington.  Premature  and  ineffectual  notice  does  not  exhaust 
right:  Griffith  v.  Maxwell,  20  Wash.  403,  55  Pac.  Rep.  571.  See  Ta- 
coma  L.  &  Mfg.  Co.  v.  Wolff.  5  Wash.  264,  31  Pac.  Rep.  753,  33  Pac. 
Rep.  507.  Appeal  by  wife:  See  Douthitt  v.  MacCulsky,  11  Wash.  601, 
40  Pac.  Rep.   186. 

A  contractor  not  Joining  in  an  appeal  was  held  not  to  be  entitled 
to  derive  any  benefit  therefrom,  except  from  the  necessities  of  the 
case,  under  the  statute  then  in  force:  Littell  v.  Miller,  8  Wash.  566, 
569,  36  Pac.  Rep.  492. 

Appeal.  Account  in  controversy.  Appeal  was  allowed  in  action 
to  foreclose  mechanics'  liens,  although  'the  amount  in  controversy 
did  not  exceed  the  sum  of  $200:  Fox  v.  Nachtsheim,  3  Wash.  684,  29 
Pac.    Rep.     140. 


787  APPEAL.  §§  963-965 

tion  of  the  judgment  wliich  determines  the  existence  of  the 
lien  and  its  priority  over  plaintiff's  lien,  but  omits  to  appeal 
from  that  part  of  the  judgment  ordering  the  sale  of  the 
property,  the  court,  on  appeal,  will  not  consider  the  correct- 
ness of  the  portion  so  omitted.^* 

§  963.  Same.  Personal  judgment  against  contractor. 
Where  the  notice  of  appeal  was  limited  in  its  language  to 
an  appeal  from  a  judgment  of  dismissal  as  to  the  owner, 
and  his  recovery  from  the  claimant  of  costs  of  suit,  and  the 
claimant  appeals  "  from  the  whole  of  said  judgment,  and 
every  part  thereof,"  the  appeal  was  not  taken  from  that 
portion  thereof  which  was  rendered  personally  against  the 
contractors,  and  will  be  entertained,  although  notice  thereof 
was  not  served  on  them.^^ 

§  964.  Same.  Upon  whom  served."  The  notice  of  appeal 
must  be  served  on  every  adverse  party  interested  in  the 
judgment,  who  would  be  affected  by  its  reversal,  and  if  not 
so  served,  the  appeal  must  be  dismissed.^^ 

§  965.     Same.     Contractor    not    adverse    party.    It    has 

recently  been  held  that  it  is  of  no  moment  to  the  coutrac- 

"  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  106  Cal.  224,  237,  39  Pac.  Rep. 
758. 

"  Roylance  v.  San  Luis  H.  Co.,  74  Cal.   273,   276,  20  Pac.  Rep.  573. 

"  Oregon.  Under  HiU's  Code,  §  537,  notice  of  appeal  had  to  be 
served  upon  all  lien  claimants,  as  they  are  "adverse  parties,"  and 
might  be  affected  by  a  modification  or  reversal  of  the  decree:  Osborn 
V.  Logus,  28  Oreg.  302,  37  Pac.  Rep.  456,  38  Pac.  Rep.  190,  42  Pac.  Rep. 
997,  citing  The  Victorian,  24  Oreg.  121,  32  Pac.  Rep.  1040,  41  Am.  St. 
Rep.  838;  and  jurisdiction  must  be  determined  from  the  conditions 
existing  at  the  time  the  appeal  is  taken.  A  contractor,  not  served 
with  summons,  nor  appearing,  tliough  named  in  the  pleadings  as  a 
defendant,  V)ut  against  whom  there  is  no  decree,  is  not  an  adverse 
party:  Id.  See  Hand  Mfg.  Co.  v.  Marks,  36  Oreg.  523,  52  Pac.  Rep. 
512. 

Likewise  where  no  relief  is  sought  against  the  contractor  by  the 
owner,  and  the  former  defaults:  Cooper  Mfg.  Co.  v.  Delahunt,  36 
Oreg.   402,  51  Pac.  Rep.   649. 

\Va.>4liington.  So  as  to  intervener  without  leave  of  court:  Gray's 
Harbor  C.  Co.  v.  Wotton,   14  Wash.   87,  43  Pac.   Rep.   1095. 

See  Kerr's  Cyc.  Code  Civ.  Proc,  §§  940  et  seq.,  and  notes.  See 
Davies-Henderson  L.  Co.  v.  Gottschalk,  81  Cal.  641,  643,  22  Pac.  Rep. 
860. 

"  Lancaster  v.  Maxwell.  103  Cal.  67,  68,  36  Pac.  Rep.  951,  37  Id.  207. 


§  966  mechanics'  liens.  788 

tor  whether,  upon  appeal  by  the  owner  from  so  much  of 
the  judgment  as  creates  the  lien  of  his  subclaimant,  it  be 
determined  that  the  lien  is  valid  or  invalid,  or  wiiether  the 
judgment  be  affirmed  or  reversed,  and  that,  under  section 
eleven  hundred  and  ninety-three,^^  if  the  judgment  estab- 
lishing the  lien  stands,  and  is  enforced  by  a  sale  of  the 
property,  or  is  discharged  by  the  owner  through  payment 
of  the  judgment,  the  owner  is  entitled  to  reimburse  him- 
self from  the  moneys  in  his  hands  due  the  contractor,  upon 
whom  is  the  primary  obligation  to  pay  his  subclaimants. 
Hence  it  is  held  that  the  original  contractor,  under  these  cir- 
cumstances, is  not  an  adverse  party  upon  whoin  notice  of 
appeal  must  be  served ;  ^®  but  the  doctrine  stated  in  this  form 
is  doubted. 

§  966.     Same.     Contractor    adverse    party.     Default.     In 

an  action  by  a  subclaimant  to  foreclose  a  mechanic's  lien, 
where  the  original  contractor  defaults,  and  judgment  is 
rendered  for  the  sale  of  the  property,  and  that  judgment 
for  the  deficiency  be  docketed  against  the  contractor,  if  the 
owner  of  the  building  appeals  from  that  part  of  the  judg- 
ment which  decrees  that  the  property  be  sold,  it  has  been 
held  that  the  contractor  is  an  adverse  party  who  would  be 
affected  by  its  reversal,  and  must  be  served  with  the  notice 
of  appeal.-*^  This  holding,  however,  must  be  considered 
against  the  w^eight  of  authority  and  the  reason  of  the  rule, 

"  Kerr's  Cyc.  Code  Civ.  Proc,  §  1193. 

"  Mannix  v.  Tryon  (Gal.  Sup.,  Sept.  19,  1907),  91  Pac.  Rep.  983, 
distin!?ui.shiug  Lancaster  v.  Maxwell,  103  Cal.  67,  36  Pac.  Rep.  951, 
and  stating  that  it  did  not  appear  in  that  case  that  any  personal 
judgment  was  rendered  against  the  original  contractor,  fixing  the 
primary  liability  on  his  part  to  the  subcontractor  for  the  entire 
amount  of  his  claim,  or  personal  judgment  rendered  for  such  a 
deficiency  as  may  appear  after  the  sale  of  the  property;  but  the 
case  fails  to  bear  out  this  last  statement.  Furthermore,  default 
against  the  original  contractor  was  taken,  but  no  notice  of  this  fact 
was   taken   in   the   case   first  cited. 

See  §§  966,  969,  post. 

Oregon.  Defaulting  contractor  not  necessary  party  to  appeal, 
when  facts  entitling  owner  to  relief  against  contractor  not  pleaded: 
See  Cooper  Mfg.  Co.  v.  "Delahunt,   36  Oreg.  402,   51  Pac.   Rep.   649. 

^  Lancaster  v.  Maxwell,  103  Cal.  67,  68.  36  Pac.  Rep.  951. 

See  note  §  965,  ante;   §  969,  post. 


789  APPEAL.  §§  9G7, 968 

as  by  his  default  the  contractor  admits  all  the  allegations  of 
the  complaint  to  be  true. 

§  967.  Same.  Subsequent  mortgagee.  Injuriously  affected. 
Where,  in  a  suit  to  foreclose  a  mortgage  against  a  defend- 
ant, mortgager  and  grantor  of  the  property,  to  a  corporation 
defendant,  and  against  claimants  of  mechanics'  liens  upon 
the  property,  the  latter  liens  are  determined  to  be  prior 
to  such  mortgage,  and  deficiency  judgments  are  ordered 
docketed  in  favor  of  the  plaintiff  against  the  mortgager, 
and  also  in  favor  of  the  lien  claimants  against  the  corpora- 
tion, an  appeal  from  that  portion  of  the  judgment  which 
determines  that  the  lien  claimants  have  any  lien  upon  the 
premises,  and  giving  their  liens  priority  over  the  mortgage, 
cannot  be  considered,  where  the  plaintiff's  notice  of  appeal 
was  not  served  either  upon  the  defendant  mortgager,  or  upon 
the  grantee,  the  corporation  defendant ;  for  a  modification  of 
such  judgment  awarding  priority  to  the  plaintiff's  mortgage 
would  have  the  effect  of  changing  the  personal  liability  of 
the  mortgager  and  grantee,  in  case  of  insufficiency  of  pro- 
ceeds to  satisfy  the  liens,  and  would  injuriously  affect  the 
interests  of  the  grantee.  The  court,  on  appeal,  under  such 
circumstances,  can  have  no  jurisdiction  to  render  the  judg- 
ment, unless  the  parties  to  be  affected  thereby  are  before  it.-^ 

§  968.  Same.  Beneficially  affected.  Under  the  circum- 
stances mentioned  in  the  last  section,  an  appeal  from  that 
portion  of  the  judgment  which  determines  that  the  claimants 
have  a  lien  upon  the  mortgaged  premises  will  be  enter- 
tained, where  the  defendant  grantee  is  not  served  with 
notice  of  appeal;  for  if  the  mortgagee,  as  it  has  a  right  to 
do,  falsify  any  of  the  mechanics'  liens  for  the  purpose  of 
reducing  the  amount  to  be  appropriated  out  of  the  proceeds 
of  the  sale  before  making  any  application  therefrom  to  its 
own  claim,  even  in  the  absence  of  the  grantee,  if  it  can  be 
done  without  injuring  such  grantee,  the  modification  would 
not   be  adverse  to  its  interests;  and.   under  such   circum- 

='  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  106  Cal.   224,   229,  231,  39  Pac 
Rep.   758. 


§§  9G9-971  mechanics'  liens.  790 

stances,  to  the  extent  that  the  obligation  of  the  grantee 
may  be  extinguished,  the  mortgagee  is  entitled  to  have  the 
judgment  modified.^^ 

§  969.  Same.  Who  need  not  be  served  with  notice  of 
appeal.  Defendants  not  served  Avith  process,  and  not  appear- 
ing, and  against  whom  no  judgment  is  taken,  need  not  be 
served  with  notice  of  appeal.^^    Thus  — 

Contractor,  not  served,  nor  appearing,  and  no  judgment 
rendered  against  him.  AVhcre  the  owner  appeals  from  a 
judgment  enforcing  a  mechanic's  lien  against  his  property, 
the  contractor,  being  a  party  defendant,  and  not  being  served 
with  summons,  nor  appearing,  and  no  judgment  being  taken 
against  him,  need  not  be  served  with  notice  of  appeal.^* 

§  970.  Same.  Service  waived  by  stipulation.  Where  sev- 
eral actions  to  enforce  mechanics'  liens  are  consolidated, 
and  each  plaintiff  recovers  judgment,  and  where  there 
appears  in  the  transcript  on  appeal  in  one  case  a  stipulation 
sufficiently  broad  to  make  the  judgment  in  the  other  case 
follow  the  judgment  in  the  case  appealed,  such  stipulation 
is  an  appearance  by  the  plaintiff  in  the  other  case  to  the 
appeal,  and  the  respondent  in  the  case  appealed  cannot  move 
to  dismiss  the  appeal  because  notice  of  appeal  was  not 
served  upon  the  plaintiff  in  the  other  case.^^ 

§  971.  Bond  for  costs.  Staying  judgment.  Lien  sub- 
ordinate to  lien  foreclosed.  Where  an  undertaking  for  costs 
and  damages  is  filed  under  section  nine  hundred  and  forty- 
one,^®  it  stays  proceedings  on  the  appeal  in  all  cases,  except 

22  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  106  Cal.  224,  229,  231,  39  Pac. 
Rep.    758. 

23  Nason  v.  John,  1  Cal.  App.  538,  540,  82  Pac.  Rep.  566. 

2*  Nason  v.  John,  1  Cal.  App.  538,  540,  82  Pac.  Rep.  566.  See  Terry 
V.  Superior  Court,  110  Cal.  85,  42  Pac.  Rep.  464;  Hinkel  v.  Donohue, 
88  Cal.  597,  26  Pac.  Rep.  374;  Merced  Bank  v.  Rosenthal,  99  Cal.  39,  31 
Pac.  Rep.  849,  33  Id.  732;  Clarke  v.  Mohr,  125  Cal.  540,  58  Pac.  Rep.  176. 

2^  Valley  L.  Co.  v.  Struck,   146  Cal.   266,  269,  80  Pac.  Rep.   405. 

Colorado.  Record  oA  appeal;  record  in  one  case  the  same  as 
others;  stipulation  to  save  costs;  one  fecord  sufficient:  See  Little 
Valeria  G.  M.  &  M.  Co.  v.  Ingersoll,  14  Colo.  App.  240,  59  Pac.  Rep.  970. 

»•  See  Kerr's  Cyc.  Code  Civ.  Proc,  §  941,  and  note. 


791  APPEAL.  §§  972, 973 

those  provided  for  in  section  nine  hundred  and  forty- 
two  to  nine  hundred  and  forty-five,-'  the  property  not  being 
perishable;  and  where  an  appeal  is  taken  from  a  judgment 
enforcing  a  mechanic's  lien,  and  ordering  the  sale  of  the 
premises  subject  to  the  lien,  by  a  subsequent  lien-holder  out 
of  possession  of  the  property,  such  undertaking  stays  the 
judgment.-^ 

§  972.  Stay  bond.  Lien  enforced.  Under  section  nine 
hundred  and  forty-five,-'-*  relating  to  appeals  from  judgments 
for  the  sale  of  real  estate,  a  bond  to  stay  the  execution  upon 
appeal  from  such  decree  enforcing  a  lien  must  be  given ; 
and  a  bond  conditioned  in  twice  the  amount  of  the  judg- 
ment against  the  owner  of  the  land,  but  not  conditioned  as 
required  by  that  section,  does  not  operate  to  stay  the  enforce- 
ment of  the  lien  upon  the  property  described  in  the  judg- 
ment.^" 

§  973.  Insufficient  record.  Compliance  with  specifica- 
tions. Void  contract.  Where  an  appeal  from  a  judgment 
in  favor  of  the  original  contractor  is  taken  by  an  owner, 
under  a  void  statutory  original  contract,  if  no  copy  of  the 
plans  and  specifications  is  contained  in  the  record,  which 
prima  facie  shows,  in  connection  with  the  contract  alleged 
and  not  denied,  that  the  plaintiffs  performed  the  work  and 

"  See  Kerr's  Cyc.  Code  Civ.  Proc,  §§  942-945,  and  notes. 

=»  Root  V,  Bryant,  54  Cal.  182,  184,  1  Pac.  Coast  L.  J.  43.  See  City 
of  Los  Angeles  v.  Pomeroy,   132  Cal.   340,  341,   64  Pac.   Rep.   477. 

Bond  void,  judgment  reversed,  with  directions  to  enter  judgment 
for  defendant:  Hampton  v.  Cliristensen,  148  Cal.  729,  740,  84  Pac. 
Rep.  200.  See  Shaunessy  v.  American  S.  Co.,  138  Cal.  543,  69  Pac. 
Rep.  701. 

See  "Constitutional  Aspects,"  §39,  ante;  "Bond,"  §§281  et  seq., 
ante;    "Sureties,"   §§605  et  seq.,  ante. 

Moutnnu.  Insufficient  bond;  dismissal:  See  Hill  v.  Cassidy,  24 
Mont.    108,    60   Pac.    Rep.    811. 

AVashington.  Failure  of  clerk  to  mark  bond  as  filed,  not  affecting 
right  of  appeal:  See  Main  I.  Co.  v.  Olsen  (Wash.,  Sept.  28,  1906),  86 
Pac.   Rep.    1112. 

-»  See  Kerr's  Cyc.  Code  Civ.  Proc.,  §  945,  and  note. 

3»  Central  L.  &  M.  Co.  v.  Center,  107  Cal.  193,  198,  40  Pac.  Rep.  334. 
See  Corcoran   v.  Desmond,   71   Cal.    100,    102,    11   Pac.   Rep.   815. 

Nevada.     See   Arrington    v.   Wittenberg,   11   Nev.    285. 

Wasliingtou.  Sufficient  bond  on  appeal  and  to  stay:  See  Young  v. 
Borzone,  26  Wash.   4,   66   Pac.  Rep.   421. 


§  974  mechanics"  liens.  792 

substantiallj^  complied  with  their  contract,  the  court  cannot 
determine  that  some  of  the  specifications  were  not  complied 
with. 31 

§  974,  Presumptions  on  appeal.  In  general.  Upon 
appeal,  the  usual  presumptions  are  indulged  in  favor  of  the 
judgment  foreclosing  a  mechanic's  lien  on  real  property. 
Thus  — 

Lien  on  real  property.  "Where  the  court  finds  that  the 
lien  claimed  is  for  painting  and  papering  the  walls  and  other 
portions  of  the  basement  story  of  a  building,  and  "  certain 
structures  or  articles  affixed  and  appurtenant  thereto  and 
placed  thereon,"  and  it  appears  that  some  work  was  per- 
formed upon  "  counters,  sideboard,  shelving,  ice-box,  parti- 
tions, and  wainscoting,"  but  there  is  nothing  to  show  that 
they  were  not  among  the  articles  affixed  and  appurtenant 
thereto,  the  court,  upon  appeal  from  the  judgment,  will 
presume  that  the  evidence  supported  the  decision,  and  that 
the  lien  is  not  given  for  work  upon  personal  property.^^ 

31  Camp  V.  Behlow,  2  Cal.  App.  699,   701,  84  Pac.  Rep.  251. 

Agreed  statement  not  controlling  court  on  appeal:  See  San  Fran- 
cisco L,.   Co.  V.   Bibb,   139   Cal.   325,   72   Pac.   Rep.    964. 

Transcript  failing  to  shoTV  motion  or  order;  dismissal;  See  Valley 
L.  Co.  V.   Struck,   146  Cal.   266,   269,   80  Pac.   Rep.   405. 

Arizona.  Appeal;  time  for  filing  transcript:  See  Prescott  Nat. 
Bank  v.   Head    (Ariz.,   May  25,   1907),   90   Pac.   Rep.    328. 

Colorado.  Appeal;  lienable  and  non-lienable  charges  in  same 
judgment:  See  Antlers  Park  Regent  M.  Co.  v.  Cunningham,  29  Colo. 
284,   68  Pac.  Rep.   226. 

Washington.  Record  not  before  court;  order  denying  motion  for 
new  trial  not  considered:  See  Seattle  L.  Co.  v.  Sweeney,  43  Wash. 
1,    85    Pac.    Rep.    677. 

Dismissal  as  to  one  defendant;  ansvrer  not  in  record;  question  not 
reviewed:  See  Knudson-Jacob  Co.  v.  Brandt  (Wash.,  Sept.  25,  1906), 
87  Pac.   Rep.   43. 

Personal  judgment  against  wife  held  not  reviewable  on  appeal, 
without  exception,  in  action  to  foreclose  architect's  lien:  See  Spald- 
ing V.   Burke,    33   Wash.   679,    74   Pac.    Rep.    829. 

'==  Sidlinger  v.  Kerkow,  82  Cal.  42,  45,  22  Pac.  Rep.  932.  See  Bianchi 
V.   Hughes,   124  Cal.   24,   56  Pac.   Rep.    610. 

Finding  that  materials  of  a  specified  value  were  furnished  by  the 
claimant  of  a  lien  upon  a  dwelling-house  to  be  used  in  its  construc- 
tion is  not  inconsistent  with  a  finding  that  part  of  them  were  fur- 
nished by  another  party,  who  refused  to  deliver  the  same  until  paid 
for,  and  that  the  claimant  paid  such  other  party  therefor;  and  it 
must  be  presumed,  in  support  of  both  findings,  where  the  appeal  is 
upon  the  judgment  roll  Avithout  a  bill  of  exceptions,  that  the  evidence 
showed  that  the  claimant  of  the  lien  received  and  furnished  a  portion 


793  APPEAL.  §§  975,  976 

§  975.  Same.  Extent  of  land.  The  court  will  presume, 
upon  appeal,  that  the  laud  described  in  the  decree  for  the 
sale  of  the  premises  upon  foreclosure  of  mechanics'  liens 
is  not  greater  in  extent  that  that  covered  by  the  building, 
if  there  is  nothing  in  the  record  to  shoAv  that  such  is  the 
case;  as  every  presumption  must  be  indulged  in  favor  of 
the  judgment;  which  will  not  be  reversed  because  there  is 
no  allegation,  either  in  the  complaint  or  in  the  answer,  or 
finding,  that  such  land  was  necessary  for  the  convenient 
use  and  occupation  of  the  building. ^^ 

Land  necessary  for  occupation.  Where  a  house  is 
described  with  sufficient  certainty  in  the  claim  of  lien,  a 
case  will  not  be  reversed  because  it  does  not  appear  how 
much  land  is  necessary  for  its  occupation.^'* 

§  976.  Same.  Support  of  findings.  Where  there  is  no 
evidence  before  the  supreme  court,  the  findings  of  the  lower 
court  will  be  taken  as  true.^° 

Reputed  owner.  It  will  be  presumed,  in  support  of  the 
findings,  that  the  person  named  in  a  claim  of  lien  was  the 

of  the  materials;  and  likewise  It  must  be  presumed  that  the  descrip- 
tion of  the  land  in  the  claim  of  lien  is  "sufficient  for  identification": 
Avery  v.  Clark,  87  Cal.  619,  629,  25  Pac.  Rep.  919,   22  Am.  St.  Rep.   272. 

Colorado.  Presumption  as  to  amendment  of  complaint  and  plead- 
ing thereto:  Bitter  v.  Mouat  L.  &  I.  Co.,  10  Colo.  App.  307,  51  Pac. 
Rep.    519. 

Idaho.     Lowe   v.    Turner,    1    Idaho    107. 

3Iontana.      See  Mason  v.  Germaine,   1  Mont.   269. 

Utah.  Findings  not  before  appellate  court;  presumption  that  they 
are  supported  by  evidence,  except  where  conflicting-:  Culmer  v. 
Caine,  22  Utah  216,  61  Pac.  Rep.  1008,  citing  Blethen  v.  Blake,  44  Cal. 
117. 

3'  Sachse  v.  Auburn,  95  Cal.  650,  651,  30  Pac.  Rep.  800;  Ward  v. 
Crane,  118  Cal.   676,   680,   50  Pac.   Rep.   839. 

3^  Newell  v.  Brill,  2  Cal.  App.  61,  64,  83  Pac.  Rep.  76.  See  Sidlinger 
V.   Kerkow,   82   Cal.   42,   22   Pac.   Rep.    932. 

^^  Thus  a  finding  as  to  whether  the  contract  was  performed,  or 
whether  the  labor  and  materials  were  furnished  to  the  owner  through 
his  aiithorized  agent,  or  to  the  contractor,  must  be  taken  as  true: 
Green  v.  Clifford,  94  Cal.   49,   51,   29  Pac.  Rep.   331. 

Prei^uinption  as  to  reasonableness  of  attorneys'  fees,  nothing  in  the 
record  to  the  contrary:  Castagnetto  v.  Coppertown  M.  &  S.  Co.,  146 
Cal.  329,  334,  80  Pac.  Rep.  74. 

Unreasonableness  cannot  be  shown  on  judgment  roll  alone,  but  by 
bill  of  exceptions  or  otlierwise:   Id. 

Colorado.  See  Charles  v.  Hallack  L.  &  Mfg.  Co.,  22  Colo.  2S3,  43 
Pac.  Rep.  548. 


§§  977, 978  mechanics'  liens.  794 

reputed  owner  at  the  time  the  contract  was  made,  though 
another  person  was  found  to  have  been  a  prior  reputed 
owner. ^^ 

A  defense  not  pleaded  cannot  be  availed  of  on  appeal, 
notwithstanding  evidence  given  on  appellant's  part  to 
prove  it.^^ 

§  977.  Same.  For  what  work  amount  found  due.  In  an 
action  by  a  contractor  to  foreclose  liens  for  grading  blocks 
of  land,  and  the  streets  surrounding  the  same,  under  two 
contracts,  where  a  mortgagee  sought  priority  over  the  lien 
of  the  contractor  for  grading  such  streets,  on  the  ground 
that  the  contract  for  the  latter  work  was  made  subsequent 
to  the  recordation  of  his  mortgage,  and  the  court  found 
the  amount  that  was  unpaid  under  the  contracts  for  grad- 
ing, but  did  not  find  that  any  portion  of  this  unpaid  sum 
was  for  grading  the  streets,  to  support  the  judgment,  rather 
than  to  defeat  it,  the  finding  will  be  construed  as  a  finding 
that  the  entire  amount  unpaid  was  on  the  block-grading 
contract,  where  the  appellant  failed  to  make  his  objection 
to  the  finding  in  the  court  below.^^ 

§  978.     Same.    What  not  presumed  on  appeal.    However, 

where  the  court  finds  that  a  contract  was  entered  into  for 
the  construction  of  certain  work,  and  that  it  was  performed, 
it  will  not  be  presumed,  upon  appeal,  without  proof,  that 
the  contract  was  void  for  want  of  filing,  or  for  any  other 
reason.^® 

Service  of  notice  on  owner.  Under  the  circumstances  just 
set  forth,  the  court  will  not  presume,  on  appeal,  without 
proof,  that  some  notice  other  than  that  expressly  found 
by  the  court,  and  prior  to  it  in  point  of  time,  was  served 
on  the  owner.*" 

«•  KeUy  V.  Lemberg-er  (CaL,  Sept.  15,  1896),  46  Pac.  Rep.  8. 

3'  Kelley  v.  Plover,  103  Cal.  35,  37,  36  Pac.  Rep.  1030  (defense  of 
guaranteeing  performance,   and   non-performance). 

3»  W^arren   v.   Hopkins,    110   Cal.    506,    42   Pac.   Rep.    986. 

3»  First  Nat.  Bank  v.  Ferris  Irr.  Dist.,  107  Cal.  55,  64,  40  Pac.  Rep. 
45,  48. 

*o  First  Nat.  Bank  v.  Perris  Irr.  Dist.,  107  Cal.  55,  64,  40  Pac.  Rep. 
45,  48. 


795  APPEAL,  §§  979, 960 

Agency  of  employer.  Where  the  trial  court  fails  to  find 
upon  the  material  issue  of  the  agency  of  the  employer  of  a 
miner  in  a  mining  claim  to  act  for  the  owner,  the  court,  on 
appeal,  will  not  indulge  in  presumptions  as  to  such  agency.*^ 

§  979.  What  not  involved.  Validity  of  deficiency  judg- 
ment against  contractor.  Appeal  by  owner.  It  has  been 
held  that,  upon  appeal  by  the  owners  of  the  property,  in 
an  action  to  foreclose  a  mechanic's  lien,  the  validity  of  a 
deficiency  judgment  against  the  contractor,  that  may  arise 
after  the  sale  of  the  structure,  and  which  does  not  pur- 
port to  be  against  the  appellants,  which,  as  to  them,  is  only 
against  the  building,  will  not  be  noticed.^^ 

§  980.  Findings.  When  objections  not  considered.  The 
court,  upon  appeal,  will  adopt  the  finding  of  the  lower  court, 
wl^ere  the  evidence  taken  in  the  trial  court  is  conflicting." 

«  Reese  v.  Bald  Mt.  Consol.  G.  M.  Co.,  133  Cal.  285,  289,  65  Pac. 
Rep.  578  (before  the  amendment  of  1903  to  Kerr's  Cye.  Code  Civ. 
Proc,   §  1183). 

"  Linck  V.   Meikeljohn,   2  Cal.  App.   506,   508,   84  Pac.  Rep.   309. 

"What  cannot  be  considered  upon  appeal  from  order  denying  new 
trial:  See  Williams  v.  Hawley,  144  Cal.  97,  99,  77  Pac.  Rep.  762 
(person  entitled  to  a  lien). 

Colorado.  What  not  considered  on  appeal  as  to  contract  not  set 
out  in  record:  See  Merriner  v.  Jeppson,  19  Colo.  App.  218,  74  Pac. 
Rep.    341. 

Wasliin^on.  Request  of  plaintiff  of  dismissal  of  foreclosure  suit, 
without  reservation  of  right  to  personal  judgment;  demand  for  re- 
versal to  obtain  personal  judgment  cannot  be  made  on  appeal:  See 
Service  v.  McMahon,   42   Wash.   452,   85  Pac.  Rep.  33. 

*^  Skym  V.  Weske  Consol.  Co.   (Cal.,  Dec.  18,  1896),  47  Pac.  Rep.  116. 

In  Kuowles  v.  Joosit,  13  Cal.  620,  it  was  held  that  a  finding  of  a 
referee   is  conclusive  as  to  the  facts   on   conflicting  evidence. 

Tlie  rule  of  tlie  text  applied  to  a  finding  of  performance:  Harlan 
V.  Stufllebeem,  87  Cal.  508,  511,  25  Pac.  Rep.  CS6;  Adams  v.  Burbank, 
103  Cal.  646,  649,  37  Pac.  Rep.  640.  So  a  finding  that  the  claim  of  a 
subclaimant  was  not  filed  within  thirty  days  after  the  completion  of 
the  structure,  is  conclusive:  Harmon  v.  San  Francisco  &  S.  R.  R.  Co., 
105  Cal.  184,  188,  38  Pac.  Rep.  032. 

As  to  tlie  date  of  completion:  Coss  v.  MacDonough,  111  Cal.  602, 
666,  44  Pac.  Rep.  325:  Ward  v.  Crane,  118  Cal.  676,  678. 

As  to  the  character  of  the  work,  and  as  to  the  remodeling  of  an 
old   house   being   the   erection    of   a   building:     Ward    v.    Crane,    supr.a. 

As  to  failure  of  the  contractor  to  complete  the  liullding  >vitliiu 
time  agreed,  due  to  the  negligence  of  the  defendant:  Wliite  v.  Fresno 
Nat.  Bank,   98   Cal.    166,   167,   32   Pac.   Rep.   979. 

That  the  money  due  had  been  paid:  Simons  v.  Webster,  108  Cal. 
16,  18,  40  Pac.  Rep.  1056;  Barry  v.  Coughlin,  90  Cal.  220,  221,  27  Pac. 
Rep.  197. 


§  980  mechanics'  liens.  796 

But  where  the  findings  of  the  lower  court  are  inconsistent,  or 
are  contrary  to  or  not  supported  by  the  evidence,  they  will 

Finding  of  agency  supported  by  prima  facie  evidence:  Donohoe  v. 
Trinity  Consol.  G.  M.  Co.,  113  Cal.  119,  124,  45  Pac.  Rep.  259. 

Finding  as  to  losses:  Pacific  R.  M.  Co.  v.  English,  118  Cal.  123, 
130,   50   Pac.  Rep.   383. 

Finding  as  to  alteration  of  contract;  Anderson  V.  Johnston,  120 
Cal.    657,    660,   53   Pac.   Rep.    264. 

Finding  that  ^-ork  of  trifling  character  Tras  done  after  date  of 
completion:  Coss  v.  MacDonough,  111  Cal.  662,  44  Pac.  Rep.  325.  See 
Bianchi   v.   Hughes,    124    Cal.    24,    56   Pac.    Rep.    610. 

Finding  of  value  and  amount  of  money  in  hands  of  owner:  Adams 
V.   Burbank,   103  Cal.   646,   649,   37   Pac.   Rep.   640. 

Finding  as  to  extra  work,  although  there  was  a  finding  for  a 
balance  for  a  small  item  of  fifty  cents,  it  being  de  minimis:  Clark  v. 
Collier,   100  Cal.   256,   259,   34  Pac.  Rep.   677. 

Finding  as  to  value  of  extra  work:  Gray  v.  Wells,  118  Cal.  11, 
17,  50  Pac.  Rep.  23.  So  as  to  fixtures:  Bianchi  v.  Hughes,  124  Cal.  24, 
56    Pac.    Rep.    610. 

Finding  based  on  conflicting  evidence  will  not  be  reviewed: 
Stevenson   v.    W^oodward,    3    Cal.    App.    754,    86    Pac.    Rep.    990. 

Conflicting  evidence  as  to  alarm-bell;  judgment  not  disturbed  on 
appeal:    Georges  v.  Kessler,  131   Cal.   183,  186,   63  Pac.  Rep.  466. 

Finding  as  to  contract  not  disturbed  on  appeal:  See  Sims  v. 
Petaluma  G.  L.  Co.,  131  Cal.  656,  62  Pac.  Rep.  300;  reversed  131  Cal. 
656,   63  Pac.   Rep.   1011. 

Reviewing  upon  appeal  conflicting  evidence;  change  in  composi- 
tion agreement  after  signing:  Schroeder  v.  Pissis,  128  Cal.  209,  60 
Pac.   Rep.    758. 

Findings  not  disturbed  as  to  terms  of  composition  agreement  and 
time  of  payment,  evidence  conflicting:  Schroeder  v.  Pissis,  128  Cal. 
209,    212,    60   Pac.   Rep.    758. 

Colorado.  Charles  v.  Hallack  L.  &  Mfg.  Co.,  22  Colo.  283,  43  Pac. 
Rep.  548. 

Referee's  findings  not  disturbed,  no  evidence  being  before  the 
court  on  appeal:  See  Perkins  v.  Boyd,  16  Colo.  App.  266,  65  Pac.  Rep. 
350,  s.  c.  86  Pac.  Rep.  1045   (Sup.). 

Idaho.  Conflict  in  oral  evidence;  findings  not  disturbed  at  law 
or  in  equity:    Robei'tson  v.  Moore,  10  Idaho  115,  77  Pac.  Rep.   218,   222. 

Finding.s  in  equity  case  not  disturbed,  unless  clearly  erroneous, 
or  against  the  weight  of  evidence:  Idaho  M.  &  M.  Co.  v.  Davis,  123 
Fed.  Rep.   396,   59  C.  C.  A.   200. 

Finding  on  immaterial  fact,  by  stipulation,  not  to  be  attacked  on 
the  ground  of  the  insufficiency  of  evidence  to  support  same:  Kent  v. 
Richardson,   8  Idaho   750,    71   Pac.   Rep.   117. 

Substantial  conflict  in  evidence;  findings  not  disturbed:  See 
Spaulding  v.  Coeur  d'Alene  R.  &  N.  Co.,  5  Idaho  528,  51  Pac.  Rep.  408. 

Montana.  Findings  based  on  conflicting  evidence  not  disturbed: 
See  A.  M.  Holter  H.  Co.  v.  Ontario  M.  Co.,  24  Mont.  184,  61  Pac.  Rep. 
3,  8. 

Kew  3Iexico.  Ford  v.  Springer  L.  Assoc,  8  N.  M.  37,  41  Pac.  Rep. 
541;  Newcomb  v.  White,  5  N.  M.  435,  23  Pac.  Rep.  671  (exceptions 
only  to  particular  items,  or  classes  of  items,  in  master's  report  will 
be  considered  on  appeal). 

Oklahoma.     Darlington  L.  Co.  v.  Lobitz,'  4  Okl.  355,  46  Pac.  Rep.  481. 

Findings  not  disturbed,  where  evidence  reasonably  supports  same: 
Fe.guson  v.  Stephenson-Brown  L.  Co.,  14  Okl.  148,  77  Pac.  Rep.  184,  186. 


797  APPEAL.  §  980 

be  set  aside  upon  appeal.**  If  the  court  finds  the  fact 
contrary  to  the  admissions  of  the  pleadings,  the  finding  must 
be  disregarded.*"^ 

Oregon.     Justice  v.   Elwert,    28   Oreg.   460,   43   Pac.   Rep.    649. 
Utah.     Dwyer  v.  Salt  Lake  City   M.   Co.,    14  Utah   339,   47  Pac.   Rep. 
311. 

Washington.  McHugh  v.  Slack,  11  Wash.  370,  377,  39  Pac.  Rep 
674. 

Verdict  not  set  a.side  as  being  against  evidence:  See  Brown's 
Exrs.   V.   Farnandis,   27   Wash.   232,  67   Pac.   Rep.   574. 

*»  Thus  where  it  appears  from  tlie  testimony  that  the  building  was 
In  fact  completed  more  than  ten  days  before  the  date  of  the  certifi- 
cate of  the  architect,  a  finding  that  the  building  was  completed 
upon  the  date  of  the  certificate  of  the  architect  will  be  set  aside 
as  not  supported  by  the  evidence:  Washburn  v.  Kahler,  97  Cal.  58,  61, 
31  Pac.  Rep.  741  (finding  as  to  performance);  Perry  v.  Quackenbushi 
105  Cal.  299,  305,  38  Pac.  Rep.  740;  Joost  v.  Sullivan,  111  Cal.  286* 
292,  43  Pac.  Rep.   896. 

Upon  foreclosure  of  material-man's  lien,  ivhere  the  only  evidence 
that  the  goods  were  sold  for  the  purpose  of  being  used  in  the 
structure  is  that  of  the  salesman,  that  he  did  not  know  where  the 
goods  were  to  be  used,  but  that  they  were  the  kind  that  were  used 
for  a  telegraph  and  telephone  line,  a  finding  that  the  materials  sold 
were  "  to  be  used  in  the  construction  of  said  telephone  line "  is  not 
supi  orted  by  the  evidence:  Roebling  Sons  Co.  v.  Bear  Valley  Irr.  Co., 
99    Cal.    488,   489,    34    Pac.    Rep.    80. 

Where  tlie  court  fiud.s,  In  term.s,  that  person  wan  an  original  con- 
tractor, and  the  findings  disclose  that  this  was  but  a  conclusion 
drawn  from  an  erroneous  construction  of  the  contract,  the  conclu- 
sion must  be  held  unsupported  by  the  evidence:  John  A.  Roebling's 
Sons  Co.  V.  Humboldt  E.  L.  &  P.  Co.,  112  Cal.  288,  292,  44  Pac.  Rep. 
568. 

Finding  that  claim  of  lien  filed  by  material-man  was  « in  due 
form  as  required  by  law  "  is  not  sustained  by  the  evidence,  where 
the  claim  stated  that  the  materials  were  to  be  paid  for  on  the  basis 
of  what  they  were  reasonably  wortli,  and  the  evidence  shows  an 
express  agreement  as  to  price  for  some  of  them,  although  there  is 
testimony  as  to  the  reasonable  value;  nor  does  such  evidence  sustain 
a  finding  of  an  agreement  to  pay  for  them  all  at  what  they  were  rea- 
sonably worth;  and  an  allegation,  in  the  complaint  of  foreclosure,  that 
the  claimant  sold  and  delivered  to  the  owner  of  the  building  "certain 
hardware  and  building  material  to  be  used  in  the  erection  and  con- 
struction of  said  building,  and  affixed  and  attached  thereto,"  is.  in 
the  absence  of  a  special  demurrer,  a  sufficient  allegation  that  the 
materials  were  to  be  used  in  tlie  building,  to  support  a  finding  to 
that  effect:  Reed  v.  Norton,  90  Cal.  590,  593,  598,  26  Pac.  Rep.  767, 
27  Id.  426    (valid  contract). 

Utali.  Disturbance  of  findings  on  appeal  in  equity  case,  when 
Inconsistent:  See  Sandberg  v.  Victor  G.  &  S.  M.  Co.,  24  Utah  1,  66 
Pac.    Rep.    360,    365. 

Washington.  Washington  R.  P.  Co.  v.  Johnson,  10  Wash.  445,  39 
Pac.  Rep.  115.  And  in  an  equity  case,  unless  there  has  been  a  request 
for  findings,  or  an  objection  raised  on  that  account,  in  the  coiirt 
below,  before  the  entry  of  the  decree,  the  objection  will  not  be  con- 
sidered  on    appeal:    Id. 

<'  Bradbury  v.  Cronise,  46  Cal.  287.  289  (that  labor  was  performed 
on  a  mining  claim).     See  Petersen  v.  Shain,  33  Pac.  Rep.  1086    (find- 


§§  981-983  mechanics'  liens.  798 

§  981.  Same.  On  appeal  from  order  denying  motion  for 
new  trial.  Where  there  is  no  appeal  from  the  judgment, 
the  court  cannot  consider  any  question  as  to  the  sufficiency 
of  the  findings  to  support  the  judgment  on  an  appeal  from 
an  order  denying  a  motion  for  a  new  trial.*® 

§  982.  Same.  Who  cannot  attack  findings.  General 
creditors.  General  creditors,  who  have  not  established  their 
liens,  upon  appeal  from  a  money  judgment  rendered  in  their 
favor  against  the  contractor,  cannot  attack  the  findings  as 
to  the  liens  of  other  claimants ;  and  error  in  the  judgment, 
in  favor  of  such  general  creditors,  cannot  be  complained  of 
by  them.*' 

§  983.  Harmless  error.  Where  the  error  is  harmless,  the 
judgment  will  not  be  reversed  therefor.*^    Thus  — 

Ing  not  contrary  to  admission  of  facts  as  to  payment  to  subcon- 
tractor —  copartners). 

Admission  of  O'n'nersbip,  in  the  separate  ansvrer  of  certain  de- 
fendants, in  an  action  to  foreclose  a  mechanic's  lien,  must  be  taken 
as  true  upon  appeal,  notwitlistanding  a  finding-  that  other  defendants 
were  owners,  upon  issue  joined  as  to  their  ownership:  Goss  v. 
Helbing,   77   Cal.   190,   19  Pac.   Rep.   277. 

Finding  that  building  constructed  upon  leased  ground  by  tenants 
was  constructed  with  the  knowledge  and  consent  of  the  landlord 
will  not  be  set  aside  upon  appeal  because  the  evidence  does  not  show 
his  consent,  where  the  finding  that  it  was  done  with  his  knowledge 
is  in  accordance  with  the  admissions  of  the  pleadings:  West  Coast 
L.  Co.  V.  Apfield,   86  Cal.   335,   342,   24  Pac.  Rep.   993. 

W^here  the  ansT«-er  did  not  deny  that  no  memorandum  of  contract 
veas  filed,  and  the  court  so  finds,  the  supreme  court  will  not  consider 
whether  the  attempted  filing  of  the  original  contract  is  sufficient 
as  a  memorandum:  San  Francisco  L.  Co.  v.  O'Neil,  120  Cal.  455,  457, 
52  Pac.  Rep.  728. 

«  Howe  V.  Schmidt  (Cal.  Sup.,  June  22,  1907),  90  Pac.  Rep.  1056. 

"  Kennedy-Shaw  L.  Co.  v.  Priet,  113  Cal.  291,  293,  45  Pac.  Rep.  336. 

See  "General  Creditors,"  §§601  et  seq.,  ante. 

**  Refusal  of  court  to  allow  evidence  as  to  circumstances  sur- 
rounding making  of  contract,  where  such  evidence  is  subsequently 
given,  and  where  such  evidence  is  immaterial:  Bryson  v.  McCone, 
121  Cal.  153,   53  Pac.  Rep.   637. 

AVbere  the  statutory  original  contract  reserved  slightly  less  than 
twenty-five  per  cent  of  the  contract  price  thirty-five  days  after  the 
completion,  no  one  being  injured:  Stimson  M.  Co.  v.  Riley  (Cal.,  Dec. 
20,   1895),  42  Pac.  Rep.   1072. 

Overruling  of  demurrer  on  ground  of  uncertainty  as  to  character 
and  extent  of  extra  work,  where  nothing  is  allowed  or  awarded  in 
the  decree  on  account  of  the  extra  work:  Wood  v.  Oakland  &  B.  R.  T. 
Co.,   107   Cal.   500,   503,   40   Pac   Rep.   806. 


799  APPEAL.  §  983 

Objecting  to  form  of  judgment  against  contractor  not 
appealing.  Where  a  jiulgmeiit  is  given,  enforcing  a  lien, 
and  the  contractor  does  not  appeal,  other  defendants  cannot 
urge  the  insufficiency  in  the  form  of  the  judgment  against 
him,  where  the  ai)pellants  are  not  injured  thereby.**-* 

Owner  objecting  to  non- joinder  of  contractor.  Where  the 
owner  of  property  appeals,  he  cannot  complain  for  the  first 
time  that  the  contractor  is  not  joined  as  a  co-defendant.  If 
he  desires  the  contractor  joined,  he  should  make  applica- 
tion to  the  trial  court  for  an  order  therefor;  and,  in  the 
absence  of  such  application,  he  will  not  be  heard  upon 
appeal.^" 

Colorado.  St.  Kevin  M.  Co.  v.  Isaacs,  18  Colo.  400,  32  Pac.  Rep. 
822:  Charles  v.  Hallack  L.  &  M.  Co.,   22  Colo.  283,  43  Pac.  Rep.  548. 

Idaho.  Non-prejudicial  error;  failure  to  find  specifications  were 
part  of  contract  not  sued  upon:  See  Spaulding  v.  Coeur  d'Alene  R. 
&  N.  Co.,  5  Idaho  528,  51  Pac.  Rep.  408. 

Montana.  Extent  and  validity  of  lien  not  considered  on  appeal, 
no  lien  liaving  been  proved:  McGlauflin  v.  Wormser,  28  Mont.  177, 
72   Pac.    Rep.    428. 

Bo'h  parties  attacking  e.stiniate  of  superintendent,  one  cannot 
complain  of  evidence  admitted  as  to  its  inaccuracy:  Cook  v.  Gallatin 
R.  Co.,  28  Mont.   340,   72   Pac.   Rep.   678. 

Oregon.  Error  appearing,  not  presumed  to  be  harmless:  Aldrich 
V.  Columbia  S.  R.  Co.,  39  Oreg.  263,  64   Pac.  Rep.   455,  460. 

Utah.  Non-prejudicial  error;  value  of  services:  See  Sandberg  v. 
Victor  G.  &  S.  M.  Co.,  24  Utah  1,  66  Pac.  Rep.  360,  365. 

AVu.shington.     Van   Hook   v.   Burns,    1   Wash.   22,   38   Pac.   Rep.   763. 
AVliere   there   is    no   exception   to    tlie   finding    of   the    sufficiency    of 
the    claim,    the    objection    to    the    evidence    will    not    be    considered    on 
appeal:    Washington    B.    L.    &    Mfg.    Co.    v.    Adler,    12    Wash.    24,    40 
Pac.  Rep.  383;  McPherson  v.  Smith,   14  Wash.  226,  44  Pac.  Rep.   255. 

As  to  report  of  referee:  See  Fairhaven  L.  Co.  v.  Jordan,  5  Wash. 
729,  32  Pac.  Rep.  729. 

Harmless  error  as  to  -work  not  done  on  property:  See  Powell  v. 
Nolan,    27    Wash.    318,    GT    Pac.    Rep.    712. 

Delivery-slips  admitted  as  books  of  original  entry,  exclusion  of 
day-books  not  prejudicial:  See  Knudson-Jacob  Co.  v.  Brandt  (Wash., 
Sept.   25,   1906),   87   Pac.   Rep.   43. 

Lien  not  enforcenl>le;  immaterial  exclusion  of  evidence:    See  I^nud- 
son-Jacob   Co.   v.   Brandt    (Wash.,   Sept.    25.   1906),    87    Pac.    Rep.   43. 
«  Western  L.   Co.   v.   Phillips,   94    Cal.    54,   56,    29    Pac.    Rep.    328. 
•■»   Yancy   v.    Morton,    94    Cal.    558,    560,    29    Pac.    Rep.    1111. 
As  to  possilile  error  in   ailniitting  expert  testimony:    Pacific   R.   M. 
Co.  V.  English,  lis  Cal.  123,  130,  50  Pac.  Rep.  3S3. 

Refusal  of  court,  at  trial,  to  permit  amendment  to  answer  setting 
up  the  existence  of  an  entire  system,  of  which  the  completed  divis- 
ions of  a  canal  formed  a  part,  as  presenting  a  new  issue,  upon 
which  no  evidence  had  been  offered,  is  harmless,  where  the  court 
subsequently  allowed  evidence  upon  that  issue,  which  was  con- 
sidered in  that  court  and  upon  appeal:  Pacific  R.  M.  Co.  v.  Bear 
Valley  Irr.  Co.,  120  Cal.   94,   101,  52  Pac.  Rep.  136,  65  Am.  St.  Rep.   158. 


§§  984, 985  mechanics'  liens.  800 

§  984.  Same.  Sufficiency  of  claim  of  lien.  Where  the 
record  contains  the  claims  of  lien,  with  the  names  attached, 
and  shows  that  it  was  duly  sworn  to,  and  the  certificate  of 
the  recorder's  recordation  is  indorsed  thereon,  the  court,  on 
appeal,  is  bound  by  the  recitals  as  to  the  filing,  record,  and 
verification  of  a  claim  of  lien.^^ 

§  985.  Objecting  on  appeal  for  first  time.^-  Contract  not 
entirely  filed.  Where  no  demurrer  is  offered  to  a  complaint 
to  foreclose  a  lien,  on  the  ground  that  the  contract  set  out 
therein  is  incomplete  because  the  plans  and  specifications 
therein  referred  to  are  not  attached  and  made  a  part  thereof, 
and  therefore  the  entire  contract  was  not  filed  in  the  record- 
er's office,  and  the  answer  admits  the  contract  as  alleged 
in  the  complaint,  and  the  contract  is  introduced  in  evi- 
dence without  objection,  it  is  too  late  to  raise  the  question 
for  the  first  time  on  appeal.^^ 

«  Silvester  v.  Coe  Q.  M.  Co.,  80  Cal.   510,   512,  22  Pac.   Rep.  21'7. 

'^  Colorado.  Not  to  be  raised  for  first  time  on  appeal.  Improper 
joinder  of  causes  of  action  by  amendment  as  to  materials  furnished 
by  a  third  person:  See  Sickman  v.  Wollett,  31  Colo.  58,  71  Pac.  Rep. 
1107. 

Defects  in  complaint,  when  it  otherwise  states  a  cause  of  action: 
Miller  v.  Thorpe,  4  Colo.  App.   559,   36  Pac.   Rep.   891. 

Constitutionality  of  provision  of  statute  as  to  sale  an<l  removal 
of  improvements,  when  cannot  be  raised  on  appeal:  See  Joralmon  v. 
McPhee,   31   Colo.   26,   71   Pac.   Rep.   419. 

Oregon.  Absolute  insufficiency  of  complaint  may  be  raised  for 
first  time  on  appeal:  See  Horn  v.  United  States  M.  Co.,  47  Oreg.  124, 
81  Pac.  Rep.  1009. 

Utah.  Want  of  good  faith  as  to  claim  of  lien  not  considered  on 
appeal  for  first  time:  See  Sandberg  v.  Victor  G.  &  S.  M.  Co.,  24  Utah 
1,  66  Pac.  Rep.  360,  366. 

Objecting  to  jurisdiction  of  court  for  first  time  on  appeal,  as  to 
venue:  See  Fields  v.  Daisy  G.  M.  Co.,  26  Utah  373,  73  Pac.  Rep.  521, 
s.  c.  25  Utah  76,  69  Pac.  Rep.  528. 

53  White  V.  Fresno  Nat.  Bank,  98  Cal.  166,  168,  32  Pac.  Rep.  979. 

Objection  to  complaint  foreclosing  a  subclaimant's  lien  on  ground 
that  it  states  merely  conclusions  of  law  as  to  the  amount  due  and 
owing  from  the  owner  to  the  contractors,  and  that  it  contains  no 
specific  averment  as  to'  what  was  the  contract  price  between  them, 
or  that  there  was  any  express  agreement  to  pay  anything,  or  what 
was  the  reasonable  value  of  the  work  to  be  done,  can  only  be  raised 
by  demurrer,  and  cannot  be  urged  for  the  first  time  on  appeal:  Russ 
L.  Co.  V.  Garrettson,  87  Cal.  589,  592,   25  Pac.  Rep.   747. 

Case  decided  upon  motion  for  nonsuit,  findings  of  court,  filed  at 
the  time  that  the  motion  for  a  nonsuit- was  granted,  cannot  be  con- 
sidered upon  appeal:  Snell  v.  Payne,  115  Cal.  218,  220.  46  Pac.  Rep. 
1069. 


801  APPEAL.  §§986,987 

§  986.  Same.  Description  of  land.  Where  there  is  no 
demurrer  to  the  complaint  as  to  the  statement  in  the  claim 
of  lien  regarding  the  description  of  the  land  to  be  charged 
with  the  lien,  and  there  was  no  objection  made  to  the  claim 
when  offered  in  evidence,  the  court  will  not  consider  tech- 
nical objections,  raised  upon  appeal  for  the  first  time,  where, 
as  a  matter  of  fact,  the  claim  contained  a  description  of  the 
property,  and  the  complaint  so  alleged  the  fact;  nor,  under 
such  circumstances,  will  the  court  consider  for  the  first  time 
upon  appeal  that  such  complaint  did  not  aver  that  the  claim 
of  lien  did  not  contain  a  "  description  of  the  property  suffi- 
cient for  identification."  ^* 

§  987.  Same.  Uncertainty  of  interest  in  property.  In 
the  absence  of  a  special  demurrer,  the  objection  that  the 
complaint  does  not  sufficiently  indicate  the  nature  and  extent 
of  the  interest  of  a  defendant  in  the  land  upon  which  a  lien 
is  sought  to  be  foreclosed  cannot  be  raised  upon  appeal 
for  the  first  time,  when  such  complaint  avers  that  one  of 
the  defendants  is  the  owner  and  reputed  owner  of  the  land 
upon  which  a  well  was  constructed,  and  that  the  other 
defendant  is  the  owner  of  such  well  and  its  appurtenances, 
and  is  the  owner  and  holder  of  an  interest  in  the  land,  and 
the  complaint  was  dismissed  as  to  the  owner  of  such  land, 
and  such  complaint  sufficiently  supports  a  judgment  fore- 
closing the  interest  of  the  owner  of  the  well  in  the  land  and 
such  well.^^ 

See  Holland  v.  Wilson,  76  Cal.  434,  18  Pac.  Rep.  412;  Yancy  v. 
Morton,  94  Cal.  558,  29  Pac.  Rep.  1111;  Rebman  v.  San  Gabriel  V.  L. 
&  W.   Co.,   95  Cal.   390,    394,   30  Pac.   Rep.   564. 

=*  Coss  V.   MacDonough,   111  Cal.   662,  666,   44   Pac.   Rep.   325. 

As  to  nature  and  extent  of  interest  in  land,  see  Parl<e  &  L.  Co.  v. 
Inter  Nos  O.   &  D.  Co.,  147  Cal.   490,  495,   82   Pac.   Rep.   51. 

New  Mexico.  See  Ford  v.  Springer  Land  Assoc,  8  N.  M.  37,  41 
Pac.    Rep.    541. 

Wasliingrton.  Objection  to  description  on  appeal  for  first  time  not 
available,  under  Ballinger's  Ann.  Codes  and  Stats.,  §5904:  Olson  v. 
Snake   River  V.  R.  Co.,   22  Wash.   139,   60  Pac.   Rep.   156. 

•'"  Parke  &  L.  Co.  v.  Inter  Nos  O.  &  D.  Co.,  147  Cal.  490,  495,  82 
Pac.  Rep.  51  (question  whether  or  not  it  would  have  been  sufficient 
on   special   demiirrer  was  not   decided). 

OniisMion    to    rcqiie.st    nnienilnient    to    pleading    after    demurrer   sus- 
tained;   objection    for    first    time    on    appeal:     See    Durrell   v.    Dooner, 
119   Cal.    411,    51    Pac.   Rep.    628. 
Mech.  Liens  —  51 


§§  988-990  mechanics'  liens.  802 

§  988.  Consolidated  cases.  Hearing  on  appeal.  The 
court,  upon  appeal,  will  not  consider  the  record  in  another 
case  from  the  mere  fact  that  the  cases  were  consolidated, 
by  order  of  the  court  below,  upon  consent  of  counsel  for  the 
respective  parties,  where  the  plaintiff  in  each  case  was 
defeated  in  the  court  below,  and  each  one  moved  separately 
for  a  new  trial,  the  grounds  of  which  were  peculiar  to  the 
respective  cases,  and  separate  bills  of  execeptions  were  pre- 
pared and  filed,  and  separate  appeals  taken,  and  each  case 
is  presented  on  the  appeal  on  its  own  record.^® 

§  989.  Order  on  appeal.  New  trial.  In  an  action  in  per- 
sonam against  the  owner,  by  the  contractor,  for  the  value 
of  extra  work,  and  for  damages  by  reason  of  the  refusal 
of  the  owner  to  permit  the  contractor  to  complete  the  con- 
tract, where  the  judgment  of  the  lower  court  is  greater  than 
that  justified  by  the  undisputed  evidence  regarding  such 
extra  work,  the  court,  on  appeal,  will  not  order  a  new  trial 
for  that  reason,  but  will  modify  the  judgment  to  the  amount 
shown  by  such  undisputed  evidence. ^^ 

§  990.  Same.  New  trial.  When  sustained.  If  the  su- 
preme court  can  discover  any  ground  upon  which  an  order 

5«  Harmon  v.  San  Francisco  &  S.  R.  R.  Co.,  86  Cal.  617,  618,  25  Pac. 
Rep.  124. 

"  McConnell  v.  Corona  City  W.  Co.,  149  Cal.  60,  64,  85  Pac.  Rep. 
929,    8   L.   R.   A.,   N.    S.,    1171. 

Modilication  of  jtidgiiieut  euforein}:,'  lien,  and  ordering'  entry  of 
per.sonal  judgment  on  appeal:  See  Schindler  v.  Green  (Cal.  App.,  Nov. 
16,  1905),  82  Pac.  Rep.  631,  on  rehearing  in  supreme  court,  149  Cal. 
752,   82   Pac.   Rep.    341. 

Judgment  for  proper  amount  not  reversed  for  excessive  claim 
made  -ivitliout  fraud:  See  Continental  B.  &  L.  Assoc,  v.  Hutton,  144 
Cal.  609,  611,  78  Pac.  Rep.  21. 

Colorado.  Decree  corrected,  upon  a.ppeal,  to  a  smaller  amount: 
See  Joralmon  v.  McPhee,   31  Colo.  26,  38,   71  Pac.  Rep.   419. 

Oregon.  Case  remanded  to  amend  answer  and  trial  upon  merits: 
See  Smith  v.  Wilkins,  31  Oreg.  421,  51  Pac.  Rep.   438. 

Utah.  Admitted  mistake  in  decree;  allowing-  expense  of  filing 
claim  not  averred  in  complaint;  decree  modified:  See  Garner  v.  Van 
Patten,    20   Utah    342,   58   Pac.    Rep.    684. 

AVasliington.  Amendment  to  cross-complaint  considered  as  made 
on  appeal:    See  Irby  v.- Phillips,  40  Wash.  618,  82  Pac.  Rep.  931. 

"\V joining.  Appellate  court  rendering  judgment  without  remand: 
See  Big  Horn  L.  Co.  v.  Davis,  14  Wyo.  455,  85  Pac.  Rep.  1048,  84  Id. 
900. 


803  APPEAL.  §  991 

of  the  trial  court  granting  a  new  trial  could  have  been 
reasonably  based,  the  action  should  be  affirmed.-^^  Thus  — 
Conflict  of  evidence.  Street-work.  Where,  upon  a  con- 
flict of  evidence  as  to  the  substantial  performance  of  a  con- 
tract for  street-work  in  front  of  a  lot  upon  which  a  lien  was 
sought  to  be  enforced,  the  trial  court  grants  a  motion  for 
new  trial,  the  court,  on  appeal,  will  assume  that,  after  a 
reconsideration  of  the  facts  on  the  motion  for  new  trial, 
the  court  reached  the  opposite  conclusion  as  to  where  the 
preponderance  lay,  and  the  supreme  court,  on  appeal,  will 
not   interfere.^'' 

§  991.  Same.  Attorneys'  fees.  The  subject  of  attorneys' 
fees  on  appeal  has  been  already  considered.*'*^  The  court, 
on  appeal  from  a  judgment  foreclosing  twelve  separate 
laborers'  liens,  cannot,  in  the  absence  of  any  evidence  as  to 
the  amount  of  services,  disturb  an  allowance  of  seventy-five 
dollars  for  attorneys'  fees  in  the  case  of  each  of  the  liens.®^ 

f^«  De  Haven  v.  McAuley,   138  Cal.   573,   574,  72  Pac.  Rep.   152, 

5«  De  Haven  v.  McAuley,   138  Cal.   573,   574,  72  Pac.  Rep.   152. 

«»  See    §§  940    et   seq.,   ante. 

"  Castagnetto  v.  Coppertown  M.  &  S.  Co.,  146  Cal.  329,  334,  80  Pac. 
Rep.  74.  See  Pacific  Mut.  L.  Ins.  Co.  v.  Fisher,  106  Cal.  234,  39  Pac. 
Rep.    758. 

Bill  of  exceptioii.s,  slio^ving:  amount  iu  value  of  .services  performed 
by  an  attorney  in  the  court  below,  necessary,  in  order  to  review  an 
alleged  excessive  judgment  for  attorneys'  fees:  See  concurring 
opinion  of  Shaw,  J.,  in  Castagnetto  v.  Coppertown  jM.  &  S.  Co.,  146 
Cal.  329,  334,  80  Pac.  Rep.   74. 

Attorneys'  fees  allotred  without  allegation  or  flndinjB;,  and  not 
reviewable  upon  appeal:  Ah  Louis  v.  Harwood,  140  Cal.  500,  507,  74 
Pac.  Rep.   41. 

Iteview  l>y  supreme  court  of  abuse  of  discretion  in  allo^ving  at- 
torneys' fees:  See  Hampton  v.  Christensen,  148  Cal.  729,  84  Pac.  Rep. 
200,    204,   s.    c.    148   Cal.    729. 

New  Mexico.  Amount  of  attorneys'  fees  allowed  not  disturbed, 
except  for  plain  abuse  of  discretion:  Armijo  v.  Mountain  E.  Co.,  11 
N.   M.    235,    67   Pac.    Rep.    726. 

AVasIiinf^ton.  Additional  allowance  for  attorneys'  fees  on  appeal 
not  made:  Sweatt  v.  Hunt,  42  Wash.  96,  84  Pac.  Rep.  1  (attorney's 
fee  in  lower  court,  $150;  judgment,  $1,172);  Lavanway  v.  Cannon,  38 
Wash.   593,   79  Pac.   Rep.    1117. 

See   §§  940  et  seq..   ante. 

Allowance  of  attorneys'  fees  not  disturbed  upon  appeal:  Windham 
V.  Independent  T.  Co.,  35  Wash.   166,  76  Pac.  Rep.  936. 


I 


PART  in. 

FOEMS. 


CHAPTER   XLVI. 

CONTRACTS,    NOTICES,    CLAIMS,    COMPLAINTS,    ETC. 


Form  No.  1. 

Form  No.  2. 

Form  No.  3. 

Form  No.  4. 

Form  No.  5. 

Form  No.  6. 

Form  No.  7. 

Form  No.  8. 

Form  No.  9. 
Form  No.  10. 

Form  No.  11. 

Form  No.  12. 

Form  No.  13. 
Form  No.  14. 
Form  No.  15. 


Form  No.  16. 
Form  No.  17. 
Form  No.  18. 


Clause    for    written    changes    in 


Clause  for  arbitration. 
Clause    for    damages    for 


delay 


Statutory  original  contract.     Skeleton  form. 

Building  contract.     Clause  for  working-drawings. 
Building  contract.     Clause  for  delays. 

Building  contract.  Clause  for  certificates  of  archi- 
tect as  to  payments. 

Building  contract.     Clause    for    delay    in    payments 

by  owner. 
Building  contract.     Clause  for  construction  of  draw- 
ings and  specifications. 

Building  contract.  Clause  for  alterations  in  con- 
tract. 

Building  contract, 
contract. 

Building  contract. 

Building  contract, 
by  contractor. 

Building  contract.  Clause  for  liability  in  case  of 
destruction  of  building  before  completion.  Owner 
and  contractor  sharing  loss. 

Building  contract.  Clause  for  liability  in  case  of 
destruction  of  building  before  completion.  Owner 
assuming  loss. 

Building  contract.  Clause  for  inspection  and  ap- 
proval of  work. 

Building  contract.  Clause  for  completion  of  build- 
ing by  owner,  upon  default  of  contractor. 

Builder's  non-statutory  original  contract.  Short 
form.  (Agreement  to  build  a  house  according  to  a 
plan  annexed,  material  to  be  furnished  by  owner.) 

Bond  for  performance  of  original  contract. 

Notice  of  non-responsibility  by  owner.     Structure. 

Notice  of  non-responsibility  by  owner.  Mining 
claim. 

(S05) 


806 


MECHANICS     LIENS. 


Form  No. 

19. 

Form  No. 

20. 

Form  No. 

21. 

Form  No. 

22. 

Form  No. 

23. 

Form  No. 

24. 

Form  No. 

25. 

Form  No. 

26. 

Form  No. 

27. 

Form  No. 

28. 

Form  No. 

29. 

Form  No. 

30. 

Form  No. 

31. 

Form  No. 

32. 

Form  No. 

33. 

Form  No. 

34. 

Form  No. 

35. 

Form  No. 

36. 

Form  No. 

37. 

Form  No. 

38. 

Form  No. 

39. 

Form  No. 

40. 

Statement  of  contractor.  Made  to  architect  or  owner 
as  to  liens,  to  obtain  payment. 

Notice  to  owner  of  furnistiing  materials  or  per- 
forming labor. 

Notice,  by  owner,  of  completion  of  building,  or  of 
cessation  from  labor. 

Verification  to  foregoing  notice. 

Claim  of  lien.     Original  contractor.     Structure. 

Verification  to  tbe  foregoing. 

Claim  of  lien.  (Owner's  material-man  or  laborer.) 
Structure. 

Miner's  claim  of  lien.     General  form. 

Claim  of  lien.  Subclaimant;  subcontractor  in  the 
first  degree;  contractor's  material-man  or  laborer. 
Structure. 

Claim  of  lien  against  two  contiguous  buildings  owned 
by  the  same  person.     General  form. 

Claim  of  lien  for  grading  lot  in  incorporated  city. 

Owner's  notice  to  contractor  to  defend  lien  suits. 

Release  of  lien. 

Complaint  for  foreclosure  of  lien.  Original  contrac- 
tor, under  non-statutory  original  contract. 

Complaint  for  foreclosure  of  original  contractor's 
lien,  under  statutory  original  contract. 

Complaint  of  lien-holder  for  grading  or  improving 
lot  in  incorporated  city. 

Complaint  for  foreclosure  of  subclaimant's  lien. 

Order  of  reference. 

Notice  by  contractor  that  he  intends  to  dispute  ac- 
count. 

Findings  and  decision.  Foreclosure  of  lien  of  own- 
er's material-men,  partners,  on  two  houses,  prop- 
erty sold  during  construction. 

Decree.  Foreclosing  lien  of  material-men,  copart- 
ners, on  two  buildings,  property  sold  during  con- 
struction. 

Satisfaction  of  judgment. 


Hints  as  to  the  use  of  the  following  forms.^  The  forms 
set  forth  in  this  work  are  intended  merely  as  suggestions  to 
the  practitioner.    In  all  eases,  the  statute,  and  the  decisions 


1  BlisceUaneons  formi^.  Form,  action  by  owner  against  contractor 
and  lien  claimants:  See  record,  Stimson  .v.  Dunliam  C.  &  H.  Co.,  146 
Cal.   281,   79  Pac.  Rep.  968. 

Colorado.  Appeal  bond  (under  Mills's  Ann.  Stats.,  §406):  See 
Marean   v.   Stanley,   34   Colo.   91,   81   Pac.   Rep.    759. 

Form,  appeal  from  decree  of  foreclosure:  See  Id. 


FORMS. 


807 


thereunder,  should  be  consulted  and  followed.  The  minute 
differences  in  the  legislative  enactments  render  it  practi- 
cally impossible  to  frame  a  set  of  flexible  forms  which  will 
satisfactorily'  meet  all  requirements.  With  this  note  of 
warning,  the  writer  hopes  that  none  will  be  misled. 

The  California  form  may  be  used,  in  many  instances, 
almost  without  change,  in  some  jurisdictions..  It  sometimes 
happens,  however,  that  the  decisions  of  the  particular  state 
require  more  than  the  statute  expressly  prescribes;  and,  in 
a  few  cases,  forms  have  been  provided  by  legislative  enact- 
ment. 


Form  No.  1.     Statutory  Original  Contract.     Skeleton  form.^ 

[Kerr's  Cyc.  Code  Civ.  Proc,  §§  1183,  1184.] 

Articles  of  Agreement,^  Made  this  second  day  of  January, 

nineteen  hundred  and  eight,  between  G  H,  of  the  city  and 

county  of  San  Francisco,  state  of  California,  the  party  of  the 

Idaho.  Form,  answer,  and  counterclaim  set  out  in  action  on  bond: 
See  American  B.  Co.  v.  Regents  of  University,  11  Idaho  163,  81  Pac. 
Rep.    604,    608. 

Form,  action  on  surety  bond  substantially  set  out  in  American  B. 
Co.  V.  Regents  of  University,   11  Idaho  163,   81  Pac.  Rep.   604. 

AVasliingrton.  Form,  complaint  on  bond  given  by  original  con- 
tractor to  owner:  See  Drumheller  v.  American  S.  Co.,  30  Wash.  530, 
71  Pac.  Rep.  25. 

=  Form,  contract  substantially  complying  with  the  law,  the  ques- 
tion as  to  the  validity  of  the  contract  being  in  issue:  See  Hooper  v. 
Fletcher,   145  Cal.  375,  377,  79  Pac.  Rep.  418   (see  record). 

Text.  See  "Statutory  Original  Contract,"  §§269  et  seq.,  ante  (over 
$1,000). 

Colorado.  Statutory  original  contract  over  $500:  3  Mills's  Ann.' 
Stats.,   2d  ed.,  §2867   (Laws  1899,  pp.  261,  262,   §1). 

'  Form,  various  provisions  of  contract  considered:  See  Gray  v.  La 
Society  FranQalse  de  B.  M.,  131  Cal.  566,  63  Pac.  Rep.  848. 

Form,  clause  in  contract  as  to  shrinkage:  See  Scanlan  v.  San 
Francisco  &  S.  J.  R.  Co.,  128  Cal.  586,  61  Pac.  Rep.  271. 

Text.     See.   generally,    "  Building  Contracts,"   §§  193   et   seq..   ante. 

Colorado.  Form,  substance  of  contract  to  construct  a  ditch:  See 
Flick  V.  Hahn's  Peak  &  E.  R.  C.  &  P.  Min.  Co.,  16  Colo.  App.  485.  66 
Pac.   Rep.   453. 

Idaho.  Form  of  contract  set  out  in  American  B.  Co.  v.  Regents  of 
University,   11  Idaho  163,  81  Pac.   Rep.  604. 

Montana.  Form,  substance  of  contract  to  construct  railway  tunnel, 
set  out  in  Wortman  v.  Montana  C.  R.  Co.,  22  Mont.  206,  56  Pac.  Rep. 
316. 

Washinjjton.  Summary  of  form  of  contract  with  county  for  the 
erection  of  a  schoolhouse:  See  Long  v.  Pierce  County,  22  Wash.  330, 
61  Pac.   Rep.   142. 


808  mechanics'  liens. 

first  part,  and  A  B,  of  the  same  place,  the  party  of  the  second 
part,  — 

Witnesseth :  The  party  of  the  first  part  will  be  hereinafter 
designated  as  the  owner,  and  the  party  of  the  second  part  as 
the  contractor,  singular  number  only  being  used;  and  the 
word  "  architect,"  used  herein  in  the  singular,  shall  include 
the  plural,  and  the  masculine  the  feminine. 

First.  The  contractor  agrees,  within  the  space  of  ninety 
working-daj's  from  and  after  date  hereof,  to  furnish  the 
necessary  labor  and  materials,  including  tools,  implements, 
and  appliances,  required,  and  perform  and  complete  in  a 
workmanlike  manner  all  the  mason,  carpenter,  plaster, 
plumbing,  tinning,  painting,  sewer,  roof,  and  tiling  work  for 
a  two-story  wooden  frame  building,  and  other  works  in  con- 
nection therewith,*  shown  and  described  in,  and  by  and  in 
conformity  with,  the  plans,  drawings,  and  specifications  for 
the  same  made  by  R  S,  the  aiithorized  architect  employed  by 
the  owner,^  and  which  are  signed  by  the  parties  hereto,  [at 
the  end  of  said  specifications,  and  on  each  sheet  of  said 
plans  and  drawings,  which  consist  of  five  sheets,]  which  said 
pJans,  drawings,  and  specifications  are  hereto  attached,  and 
made  a  part  hereof.® 

Second.  Said  building  is  to  be  erected  upon  a  lot  of  land 
situated  in  said  city  and  county  of  San  Francisco,  state  of 
California,  and  described  as  follows  [insert  description].'' 

Third.  The  owner  agrees,  in  consideration  of  the  per- 
formance of  this  agreement  by  the  contractor,  to  pay,  or 
cause  to  be  paid,  to  the  contractor,  his  legal  representatives 
or  assigns,  the  sum  of  twelve  thousand  dollars,  in  United 
States  gold  coin,  at  the  times  and  in  the  manner  following, 
to  wit :  ®  Payments  to  be  made  in  instalments  as  the  work 
progresses,  on  the  first  day  of  each  month,  commencing  on 

*  Text.     See  "Labor  for  Which  a  Lien  is  Given,"  §§  130  et  seq.,  ante. 
^  Text.     See  "Architects,"  §§  119  et  seq.,  ante. 

•  Form,  specifications  for  various  parts  of  the  building,  referring 
to  adjoining  house  as  samples  of  the  work,  approved  by  court:  See 
California  I.  C.  Co.  v.  Bradbury,  138  Cal.  328,  331,   71  Pac.  Rep.  346,  617. 

Text.     See  "  Plans  and  Specifications,"  §§  208,   294  et  seq.,  ante. 
'  Text.     Compare   "  Description  of  Property,"   §§  399  et  seq.,  ante. 
"  Colorado.      At    least    fifteen    per    cent    twenty-five    days    after:    3 
Mills's  Ann.  Stats.,  2d  ed.,  §  2868   (Laws  1899,  pp.  263-265,  §  2). 


FORMS.  809 

the  first  day  of  February,  1907,  in  sums  equal  to  seventy- 
five  per  cent  of  the  value  of  the  work  done  and  materials 
furnished  under  this  contract,  up  to  the  date  of  said  pay- 
ment, to  be  estimated  according  to  the  whole  contract  price,- 
and  the  balance  of  said  contract  price,  viz.,  twenty-five  per 
cent  of  said  contract  price,  namely,  the  sum  of  three 
thousand  dollars  ($3,000),  to  be  paid  thirty-five  days  after 
final  completion  of  the  work  described  in  this  contract.  The 
proportion  in  value  of  said  work  and  materials  furnished 
to  the  whole  contract  price  to  be  estimated  by  the  architect 
and  contractor  as  aforesaid. 

[Or,  if  the  payments  are  to  be  made  on  the  completion  of 
specified  portions  of  the  work,  insert :  "  Payments  shall  be 
made  on  the  completion  of  specified  portions  of  the  work,  as 
follows:  First  payment,  two  thousand  dollars  ($2,000)  when 
the  brickwork  is  up  to  the  high  grade,  and  the  timbers  laid ; 
second  payment,  two  thousand  dollars  ($2,000)  when  the 
brick  walls  are  up  to  the  second  story,  and  the  timbers  laid ; 
third  payment,  two  thousand  five  hundred  dollars  ($2,500) 
when  the  brick  walls  are  up  to  the  third  story,  read.y  for  the 
roof ;  ^  fourth  payment,  two  thousand  five  hundred  dollars 
($2,500)  when  the  roof  is  covered,  floors  laid,  and  all  the 
plastering  complete ;  fifth  payment,  three  thousand  dollars 
($3,000)  —  twenty-five  per  cent  of  contract  price  ^°  —  pay- 
able thirty-five  days  after  the  final  completion  of  the 
contract."  "] 

[Here  insert  clauses  Forms  Nos.  2  to  14,  post,  as  may  be 
desired.] 

In  witness  whereof,  The  said  parties  to  these  presents  have 
hereunto  set  their  hands  and  seals,  the  day  and  year  first 
above  written. [Seal] 

Witness: [Seal] 

•  Text.     Payments:  See  §§  273  et  seq.,  ante. 

irtnli.  Payments  not  in  advance  of  commencement  of  work:  See 
Rev.  Stats.,  §1373.  Contract  price  payable  in  money;  exception:  See 
Rev.  Stats.,  §  1375. 

AVyonilng.     See  Rev.   Stat-s.,   §  2893. 

'"  Form,  contract,  payment  on  completion  should  be  large  enough 
to  protect  the  owner:  See  Hampton  v.  Christensen,  148  Cal.  729,  739, 
84  Pac.  Rep.  200. 

"  Text.     Final  payment:  See  §§  274  et  seq.,  ante. 


810  mechanics'  liens. 

Form  No.  2.     Building  Contract.     Clause  for  working- 
drawings. 

Said  architect  shall  provide  and  furnish  to  the  contractor 
all  details  and  working-drawings  necessary  to  properly  de- 
lineate said  plans  and  specifications;  and  the  work  is  to  be 
done  and  the  materials  furnished  in  accordance  therewith, 
under  the  direction  and  supervision  and  subject  to  the  ap- 
'proval  of  said  architect/^  or  a  superintendent  selected  and 
agreed  upon  by  the  parties  hereto,  within  a  fair  and  equi- 
table construction  of  the  true  intent  and  meaning  of  said 
plans  and  specifications.^^ 

Form  No.  3.     Building  Contract.     Clause  for  delays.^* 

The  time  during  which  the  contractor  is  delayed  in  said 
work  by  the  acts  or  neglects  of  the  owner  or  his  employees, 
or  those  under  him  by  contract  or  otherwise,  or  by  the  acts 
of  God  which  the  contractor  could  not  have  reasonably  fore- 
seen and  provided  for,  or  by  stormy  and  inclement  weather 
which  delays  the  work,  orby  any  strikes,  boycotts,  or  like 
obstructive  action  by  employee  or  labor  organizations,  or  by 
any  general  lockouts  or  other  defensive  action  by  employers, 
whether  general  or  by  organizations  of  employers,  shall  be 
added  to  the  aforesaid  time  for  completion. 

Form  No.  4.     Building  Contract.     Clause  for  certificates  of 
architect  as  to  payments. ^^ 

Provided,  That  when  each  payment  or  instalment  shall 
become  due,  and  at  the  final  completion  of  the  work,  certifi- 

"  Text.     As  to  architect,   see  §§  119  et  seq.,  ante. 

'^  Washin^on.  Form,  clause  in  contract  as  to  performance  of 
work  to  the  satisfaction  of  owner:  See  Childs  L.  &  Mfg.  Co.  v.  Page, 
28  Wash.   128,   68  Pac.  Rep.  373. 

Form,  clause  in  contract,  contractor  to  provide  facilities  for  in- 
spection by  owner,  to  remove  condemned  material,  and  to  take  down 
condemned  work:  See  Childs  L.  &  Mfg-.  Co.  v.  Page,  28  Wash.  128,  68 
Pac.  Rep.  373. 

"  Text.  See  "Construction  of  Building  Contracts."  §§216  et  seq., 
ante. 

Washington.  Form;  provision  in  contract  as  to  delay  by  reason  of 
act  of  default  of  owner:  See  Drumhellel-  v.  American  S.  Co.,  30  Wash. 
530,  71  Pac.  Rep.  25. 

"  Text.  See  "Certificate."  §§239  et  seq.,  ante;  "Payments,"  §§251 
et  seq.,  ante;  "Architects,"  §§  119  et  seq.,  ante. 


FORMS.  811 

cates  in  writing  shall  be  obtained  from  the  said  architect 
stating  that  the  payment  or  instalment  is  due  or  work  com- 
pleted, as  the  case  may  be,  and  the  amount  then  due ;  and  the 
said  architect  shall  at  said  times  deliver  said  certificates, 
under  his  hand,  to  the  contractor,  or,  in  lieu  of  such  certifi- 
cates, shall  deliver  to  the  contractor,  in  writing,  under  his 
hand,  a  just  and  true  reason  for  not  issuing  the  certificates, 
including  a  statement  of  the  defects,  if  any,  to  be  remedied, 
to  entitle  the  contractor  to  the  certificate  or  certificates.  And 
in  the  event  of  the  failure  of  the  architect  to  furnish  and 
deliver  said  certificates,  or  any  of  them,  or,  in  lieu  thereof, 
the  writing  aforesaid,  within  three  days  after  the  times 
aforesaid,  and  after  demand  therefor  made  in  writing  by 
the  contractor,  the  amount  which  may  be  claimed  to  be  due 
by  the  contractor,  and  stated  in  the  said  demand  made  by  him 
for  the  certificate,  shall,  at  the  expiration  of  said  three 
days,  become  due  and  payable,  and  the  owner  shall  be  liable, 
and  bound  to  ipay  the  same  on  demand. 

In  case  the  architect  delivers  the  writing  aforesaid  in  lieu 
of  the  certificate,  then  a  compliance  by  the  contractor  with 
the  requirements  of  said  writing  shall  entitle  the  contractor 
to  the  certificate. 


Form  No.  5.     Building  Contract.     Clause  for  delay  in  pay- 
ments by  owner.'** 

For  any  delay  on  the  part  of  the  owner  in  making  any  of 
the  payments  or  instalments  provided  for  in  this  contract 
after  they  shall  become  due  and  payable,  he  shall  be  liable 
to  the  contractor  for  any  and  all  damages  which  the  latter 
may  suffer;  and  such  delay  shall,  in  addition,  operate  as  an 
additional  extension  of  the  time  for  completion  aforesaid 
for  the  length  of  time  of  such  delay.  And  such  delay,  if 
for  more  than  five  days  after  the  date  when  said  payments  or 
instalments  shall  have  respectively  become  due  and  payable, 

Oregon.  Form,  contract,  peculiar  provisions  in  contract  as  to 
architect's  certificate:  See  Vanderlioof  v.  Shell,  42  Oreg.  578,  72  Pac. 
Rep.    126,   129. 

16  Text.  See  "Original  Contractor,"  §61,  ante;  "Owner,"  §§512 
et  seq.,  ante;  "Performance,"  §§334  et  seq.,  ante. 


812  mechanics'  liens. 

as  in  this  agreement  provided,  shall,  at  the  option  of  the 
contractor,  be  held  to  be  prevention  by  the  owner  of  per- 
formance of  this  contract  by  the  contractor.^^ 


Form  No.  6.     Building  Contract.     Clause  for  construction 
of  drawings  and  specifications. 

The  specifications  and  drawings  are  intended  to  co-oper- 
ate, so  that  any  work  exhibited  in  the  drawings  and  not 
mentioned  in  the  specifications,  or  vice  versa,  are  to  be 
executed,  the  same  as  if  both  mentioned  in  the  specifications 
and  set  forth  in  the  drawings,  to  the  true  intent  and  mean- 
ing of  the  said  drawings  and  specifications  when  taken 
together.  But  no  part  of  said  specifications  that  is  in  con- 
flict with  any  portion  of  this  agreement,  or  that  is  not 
actually  descriptive  of  the  work  to  be  done  thereunder,  or 
of  the  manner  in  which  the  said  work  is  to  be  executed, 
shall  be  considered  as  any  part  of  this  agreement,  but  shall 
be  utterly  null  and  void.^® 

Form  No.  7.     Building  Contract.     Clause  for  alterations  in 

contract.'" 

Should  the  owner  or  the  architect,  at  any  time  during  the 
progress  of  the  w^ork,  request  any  alterations  or  deviations 
in,  additions  to,  or  omissions  from  this  contract,  or  the  plans 
or  specifications,  either  of  them  shall  be  at  liberty  to  do  so, 
and  the  same  shall  in  no  way  affect  or  make  void  this  con- 

"  Text.     See  '^Performance,"  §§  334  et  seq.,  ante. 

"  Text.  See  "  Construction  of  Building  Contracts,"  §§  216  et  seq., 
ante. 

^'  Form,  provision  as  to  changes  in  contract:  See  People's  L.  Co.  v. 
Gillard,  136  Cal.  55,  60,  68  Pac.  Rep.  578. 

Text.     See   "  Alteration   of   Original   Contract,"    §§  326    et   seq.,   ante. 

Washington.  Form,  provision  in  contract  as  to  alterations:  See 
Drumheller  v.  American  S.  Co.,   30  W^ash.   530,   71  Pac.  Rep.   25. 

Form,  provision  in  contract  for  alterations,  etc.,  at  a  fair  and 
reasonable  valuation:  See  Crowley  v.  United  States  F.  &  G.  Co.,  29 
V.'ash.  268,  69  Pac.  Rep.   784. 

Form,  contract,  provision  as  to  alterations  and  deviations  from  and 
additions  to  contract:  See  Friend  v.  Ralston,  35  Wash.  422,  77  Pac. 
Rep.   794,  795. 


FORMS.  813 

tract ;  but  the  amount  thereof  shall  be  added  to  or  deducted 
from  the  amount  of  the  contract  price  aforesaid,  as  the  case 
may  be,  by  a  fair  and  reasonable  valuation.  And  this  con- 
tract shall  be  held  to  be  completed  when  the  work  is  finished 
in  accordance  with  the  original  plans,  as  amended  by  such 
changes,  whatever  may  be  the  nature  or  extent  thereof.^** 


Form  No.  8.     Building  Contract.  Clause  for  written  changes 
in  contract.-' 

The  rule  of  practice  to  be  observed  in  the  fulfilment  of 
the  last  foregoing  paragraph  shall  be,  that,  upon  the  demand 
of  either  the  contractor,  owner,  or  architect,  the  character 
and  the  valuation  of  any  or  all  changes,  omissions,  or  extra 
work,  shall  be  agreed  upon  and  fixed  in  writing,  signed  by 
the  owner  or  architect  and  the  contractor,  prior  to  execu- 
tion.^^ 


Form  No.  9.     Building  Contract.     Clause  for  arbitration.-^ 

Should  any  dispute  arise  between  the  owner  and  the  con- 
tractor, or  between  the  contractor  and  the  architect,  respect- 
ing the  true  construction  of  the  drawings  or  specifications, 
the  same  shall,  in  the  first  instance,  be  decided  by  the  archi- 
tect ;  but  should  either  of  the  parties  hereto  be  dissatisfied 
with  the  justice  of  such  decision,  or  should  any  dispute  arise 
between  the  parties  hereto  respecting  the  valuation  of  the 
extra  work,  work  done,  or  work  omitted,  the  disputed  matter 
shall  be  referred  to  and  decided  by  two  competent  persons, 
who  are  experts  in  the  business  of  building,  one  to  be 
selected  by  the  owner  or  the  architect,  and  the  other  b}-  the 

»  Text.     See   "  Performance,"    §§  334   et   seq.,   ante. 

-'  Text.     See  "  Alteration  of  Orig-inal  Contract."  §S  326  et  seq.,  ante. 

^Vn.shington.  Form,  clause  in  contract  as  to  alterations  in  con- 
tract upon  written  order  of  owner;  arbitration  as  to  value:  See 
Childs  I..  &  Mfg.  Co.  V.  Page,  28  Wasli.  128,  68  Pac.  Rep.  373. 

-  AVsiNliineton.  Form,  contract,  provision  as  to  extra  work  re- 
ruired  to  be  evidenced  by  certificate  of  owner,  countersigned  by- 
architect:     See  Friend  v.  Ralston,  35  Wasb.  422,  77  Pac.  Rep.  794,   796. 

Text.     See  "Extra  W'ork,"  §§243  et  seq.,  ante. 

^  Text.     See  "  Arbitration  Clause,"  §§  230  et  seq.,  ante. 


814  mechanics'  liens. 

contractor;  and  in  ease  they  cannot  agree,  these  two  shall 
select  an  umpire,  and  the  decision  of  any  two  of  them  shall 
be  binding  on  all  parties.^* 

Form  No.  10.     Building  Contract.     Clause  for  damages  for 
delay  by  contractor.-' 

Should  the  contractor  fail  to  complete  this  contract,  and 
the  works  provided  for  therein,  within  the  time  fixed  for 
such  completion,  due  allowance  being  made  for  the  con- 
tingencies provided  for  herein,  he  shall  become  liable  to 
the  owner  for  all  loss  and  damages  which  the  latter  may 
suffer  on  account  thereof,  but  not  to  exceed  the  sum  of  fifty 
dollars  per  day  for  each  day  said  works  shall  remain  un- 
completed beyond  such  time  for  completion.^* 


Form  No.  11.  Building  Contract.  Clause  for  liability  in 
case  of  destruction  of  building  before  completion.  Owner 
and  contractor  sharing  loss.-' 

In  case  said  work  herein  provided  for  should,  before  com- 
pletion, be  wholly  destroyed  by  fire,  defective  soil,  earth- 
quake, or  other  act  of  God,  which  the  contractor  could  not 
have  reasonably  foreseen  and  provided  for,  then  the  loss 
occasioned  thereby  shall  be  sustained  by  the  owner  to  the 
extent  that  he  has  paid  instalments  thereon,  or  that  may  be 

^  Washing^ton.  Form,  contract,  provision  as  to  dispute  arising 
as  to  the  true  construction,  same  sliall  be  decided  by  architect:  See 
Friend  v.   Raltson,    35   Wash.   422,   77   Pac.   Rep.    794,   795. 

Form,  provision  as  to  alterations;  clause  relating  to  reference  to 
arbitrators  in  case  of  dispute  as  to  value  of  alterations,  construed: 
See  Brown's  Exrs.  v.  Farnandis,   27  Wash.   232,   67  Pac.   Rep.  574. 

Form,  provision  in  contract  for  extra  work,  requiring  certificate 
from  owner  to  be  countersigned  by  architect:  See  Crowley  v.  United 
States  F.  &  G.  Co.,  29  Wash.  268,  69  Pac.  Rep.  784.  (This  provision 
of  the  contract  for  the  benefit  of  the  owner;  intended  as  a  rule  of 
evidence,  which  may  be  waived:  Id.) 

="  Oregon.  Form,  contract,  provision  as  to  delay:  See  Vanderhoof 
V.   Shell.   42   Greg.   578,   72   Pac.   Rep.    126,    130. 

AVashington.  Form,  provision  in  contract  for  damages  to  be  fixed 
and  determined  by  architect  or  arbitration:  See  Drumheller  v. 
American  S.  Co.,  30  Wash.   530,  71  Pac.  Rep.   25. 

»>  Text.     See   "  Rights  of  Owner,"  §  510,  ante. 

"  Text.     See  §  530,  ante. 


FORMS. 


815 


due  under  the  fifth  clause  of  this  contract;  and  the  loss 
occasioned  therebj^,  and  to  be  sustained  by  the  contractor, 
shall  be  for  the  uncompleted  portion  of  said  work  upon 
which  he  may  be  engaged  at  the  time  of  the  loss,  and  for 
which  no  payment  is  yet  due  under  said  fifth  clause  of  this 
contract. 

In  the  event  of  a  partial  destruction  of  said  work  by  any 
of  the  causes  above  named,  then  the  loss  to  be  sustained  by 
the  owner  shall  be  in  the  proportion  that  the  amounts  of 
instalments  paid  or  due  bear  to  the  total  amount  of  work 
done  and  materials  furnished,  estimated  according  to  said 
contract  price,  and  the  balance  of  said  loss  to  be  sustained 
by  the  contractor. 

Form  No.  12.  Building  Contract.  Clause  for  liability  in 
case  of  destruction  of  building  before  completion.  Owner 
assuming  loss.-* 

In  case  said  work  herein  provided  for  should,  before  com- 
pletion, be  wholly  or  partially  destroyed  by  fire,  defective 
soil,  earthquake,  or  other  act  of  God,  which  the  contractor 
could  not  have  reasonably  foreseen  and  provided  for,  then 
the  loss  occasioned  thereby  shall  be  sustained  by  the  owner, 
and  the  owner  to  agree  to  carry  an  insurance  for  the  full 
amount  of  the  labor  and  material  as  the  work  progresses. 


Form  No.   13.     Building   Contract.     Clause  for   inspection 
and  approval  of  work.-^ 

The  payment  of  the  progress  payments  by  the  owner  shall 
not  be  construed  as  an  absolute  acceptance  of  the  work  done 
up  to  the  time  of  such  payments;  but  the  entire  work  is  to 
be  subject  to  inspection  and  approval  of  the  architect  or 
superintendent  at  the  time  when  it  shall  be  claimed  by  the 
contractor  that  the  contract  and  works  are  completed;  but 
the  architect  or  superintendent  shall  exercise  all  reasonable 
diligence  in  the  discovery,  and  report  to  the  contractor  as 
the  work  progresses,  of  materials  and  labor  which  are  not 

=»  Text.     See  §  530,  ante. 

»  Text.     See,  generally,  §§  229  et  seq.,  ante. 


816  mechanics'  liens. 

satisfactory  to  the  architect  or  superintendent,  so  as  to  avoid 
unnecessary  trouble  and  cost  to  the  contractor  in  making 
good  defective  parts. 

Form  No.  14.     Building  Contract.     Clause  for  completion  of 
building  by  owner,  upon  default  of  contractor.-" 

Should  the  contractor,  at  any  time  during  the  progress  of 
the  work,  refuse  or  neglect,  Avithout  the  fault  of  the  owner, 
architect,  or  superintendent,  to  supply  a  sufficiency  of  ma- 
terials or  workmen  to  complete  the  contract  within  the  time 
limited  herein,  due  allowance  being  made  for  the  contin- 
gencies provided  for  herein,  for  a  period  of  more  than  three 
daj^s  after  having  been  notified  by  the  owner,  in  writing,  to 
furnish  the  same,  the  owner  shall  have  power  to  furnish  and 
provide  said  materials  or  workmen  to  finish  the  said  work; 
and  the  reasonable  expense  thereof  shall  be  deducted  from 
the  amount  of  the  contract  price. 

Form  No.  15.  Builder's  Non-Statutory  Original  Contract.^^ 
Short  form.  (Agreement  to  build  a  house  according  to  a 
plan  annexed,  material  to  be  furnished  by  owner.) 

This  Agreement,  Made  this  day  of  ,  between 

A  B,  of ,  and  C  D,  of , 

Witnesseth :  That  the  said  C  D,  for  the  considerations 
hereinafter  mentioned,  does,  for  himself,  his  executors  and 
administrators,  covenant  and  agree  With  the  said  A  B,  his 
executors,  administrators,  and  assigns,  that  he,  the  said  C  D, 

or  his  assigns,  will,  within  the  space  of working-days 

next  after  the  date  hereof,  in  good  and  workmanlike  manner, 
and  according  to  the  best  of  his  skill  and  ability,  upon  the 
premises  hereinafter  described,  erect,  build,  and  finish,  in 
a  good  and  substantial  manner,  a  two-story  frame  or  wooden 

^  AVashington.  Form,  clause  in  contract,  three  days'  notice  to 
supply  proper  materials  and  to  terminate  contract:  See  Cliilds  L.  & 
Mfg.  Co.  V.  Page,   28  Wash.   128,  68  Pac.  Rep.   373. 

Text.     See  "  Riglit  to  Complete  Construction,"   §  519,  ante. 

"^  Also  adapted  to  all  states  not  requiring  contract  to  be  accom- 
panied  by   formalities. 

Text.     See  "  Non-Statutory  Original  Contract,"   §§  258  et  seq.,  ante. 

See  Forms  Nos.  1  to  14,  and  notes,  ante. 


1 


FORMS.  817 

building,  according  to  the  plans  and  specifications  hereto 
annexed,  and  made  a  part  hereof,  of  the  dimensions  follow- 
ing: — ;  and  to  construct  the  same  of  such  materials  as 

the  said  A  B,  or  his  assigns,  shall  find  and  provide  for  the 
same ;  in  consideration  whereof  the  said  A  B  does,  for  him- 
self, his  executors  and  administrators,  covenant  and  agree 
well  and  truly  to  pay,  or  cause  to  be  paid,  unto  the  said 
C  D,  his  executors,  administrators,  and  assigns,  the  sum  of 

. dollars,^-  gold  coin  of  the  United  States,  in  full  for  said 

work,  when  the  same  shall  be  completely  finished ;  and  also 
that  he,  the  said  A  B,  his  executors,  administrators,  or 
assigns,  shall,  at  his  and  their  own  proper  expense,  find  and 
provide  all  the  stone,  brick,  tile,  timber,  and  other  material 
necessary  for  making  and  building  said  house,  in  such 
quantities  and  at  such  times  as  the  same  may  be  required. 

Owing  to  the  impracticability  and  extreme  difficulty  of 
fixing  the  actual  damages,  there  shall  be  a  forfeiture  of 
twenty  dollars  per  day  for  each  and  every  day  over  the 
stated  time  for  the  completion  of  said  building,  to  be  de- 
ducted from  the  contract  price. 

The  following  is  a  description  of  the  real  property  whereon 
said  building  is  to  be  erected: [insert  description]. 

In  witness  whereof,  Said  parties  have  hereunto  set  their 
hands  and  seals  the  day  and  year  first  above  written. 

[L.  S.] 

[L.  S.] 

Signed,  sealed,  and  delivered  in  the  presence  of 


[L.  S.] 

[Annex  plans  and  specifications.] 

Form  No.  16.     Bond  for  Performance  of  Original  Contract.^^ 

Know  all  men  by  these  presents,  Tliat  we,  A  B  as  principal, 
and  C  D  and  E  F  as  sureties,  all  of  the  city  and  county  of 

'-"  One  thousand  dollars  or  less:  Kerr's  Cyc.  Code  Civ.  Proe.,   §  1183. 

CoKtruflo.      Non-statutory     original     contract,     $500     or     under:      3 
Mills's  Ann.  Stats.,  2d  ed.,  §  2867   (Laws  1899,  pp.  261,  262,  §  1). 

■i'  Form,  common-law  bond,  contractor's  bond  making'  no  reference 
to    §  1203    of    the    Code    of    Civil    Procedure,    upheld,    although    section 
declared  unconstitutional:   See  Alcatraz  ^\.  H.  Assoc,  v.  United  States 
F.  &  G.  Co.,  3  Cal.  App.  338,  85  Pac.  Rep.  156,  157. 
Mech.  Liens  —  52 


818  mechanics'  liens. 

San  Francisco,  are  held  and  firmly  bound  unto  G  II,  of  the 
same  place,  in  the  sum  of  ten  thousand  dollars  (or  such 
other  sura  as  raay  cover  all  possible  damages),  in  gold  coin 
of  the  United  States,  to  be  paid  to  the  said  G  H,  his  execu- 
tors, administrators,  or  assigns,  for  which  payment  well 
and  truly  to  be  made  we  bind  ourselves,  our  and  each  of  our 
heirs,  executors,  and  administrators,  jointly  and  severally, 
firmly  by  these  presents. 

Sealed  with  our  seals  and  dated  this  day  of  , 

one  thousand  eight  hundred  and  ninety-nine. 

The  condition  of  the  above  obligation  is  such.  That  whereas 
the  said  A  B  did,  at  the  date  hereof,  enter  into  a  contract, 
in  writing,  with  the  said  G  H,  by  which  said  A  B  agreed 
to  erect  a  certain  dwelling-house  for  the  said  G  H,  and  fully 
fulfil  and  perform  all  the  covenants,  agreements,  and  stipu- 
lations therein  contained  on  the  part  of  said  A  B  to  be  so 
fulfilled  and  performed,  a  copy  of  which  agreement  is  hereto 
annexed  and  made  a  part  hereof,  — 

Form,  bond,  held  valid,  although  statute  is  unconstitutional  and 
void:  See  People's  L.  Co.  v.  Gillard,  136  Cal.  55,  58,  68  Pac.  Rep.  576. 

Coniiuon-Ia^v  bond:  See  Kiessig-  v.  Allspaugh,  91  Cal.  234,  27  Pac. 
Rep.   662. 

Text.     See  "Bond,"  §§  281  et  seq.,  and  §§  605  et  seq.,  ante. 

Arizuna.  Form,  condition  of  bond:  See  Prescott  N.  Bank  v.  Head 
CAriz.),  90  Pac.  Rep.  328. 

Idaho.  Form  of  bond  accompanying  contract  set  out  in  American 
B.  Co.  V.  Regents  of  University,  11  Idaho  163,   81  Pac.  Rep.  604,  607. 

Oklahoma.  See  Rev.  &  Ann.  Stats.,  (4829)  §631,  (4830)  §632, 
(4831)    §633. 

Oregon.  Form,  bond  with  original  contractor's  contract  set  out 
in  Ausplund  v.  ^Etna  Ins.  Co.,  47  Oreg.  10,  81  Pac.  Rep.  577.  See 
McKinnon   v.   Higgins,   47   Oreg.   44,    81   Pac.   Rep.   581. 

Form,  bond  of  contractor,  set  out  in  full,  provisions  construed: 
See  Enterprise  H.  Co.  v.  Book,  48  Oreg.  58,  85  Pac.  Rep.  334. 

Form,  bond,  clause  as  to  protection  against  mechanics'  liens;  pay- 
ment for  materials;  certificate  of  county  clerk  and  recorder  that  no 
lien  filed:  See  Hand  Mfg.  Co.  v.  Marks,  36  Oreg.  523,  52  Pac.  Rep. 
512,   53  Id.   1072,   59  Id.   549. 

Form,  bond,  clause  as  to  preserving  building  free  from  liens:  See 
Henry  v.  Hand,  36  Oreg.  492,  59  Pac.  Rep.  330. 

^Vashing^on.  See  Pierce's  Code,  §  6102,  as  amended  Laws  1905,  ch. 
cxvi. 

Form,  contractor's  bond,  provision  as  to  time  for  commencing  suit: 
See  Friend  v.  Ralston,   35  Wash.   422,   77   Pac.  Rep.    794,    795. 

Form,  bond,  time  within  which  action  must  be  brought:  See  Beebe 
v.  Redward,   35  TVash.   615,   77  Pac.   Rep.    1052. 

Form,  bond,  recitals  and  obligation:  See  Drumheller  v.  American 
S.  Co.,  30  Wash.  530,  71  Pac.  Rep.  25. 


I 


FORMS. 


819 


Now,  therefore,  if  the  above-bounden  A  B,  his  executors, 
administrators,  or  assigns,  shall  in  all  things  stand  to,  abide 
by,  and  well  and  truly  keep  and  perform  the  covenants,  con- 
ditions, and  agreements  in  the  said  contract  contained,  on 
his  part  to  be  kept  and  performed,  at  the  time  and  in  the 
manner  and  form  therein  specified,  then  the  above  obligation 
shall  be  void,  else  to  remain  in  full  force  and  virtue. 

A  B  [L.  S.] 
C  D  [L.  S.] 
E  F  [L.  S.] 

Signed,  sealed,  and  delivered  in  the  present  of 

[Attached  to  copy  of  contract.] 


Form  No.  17.     Notice  of  Non-Responsibility  by  Owner. 
Structure. '^^ 
[Kerr's  Cyc.  Code  Civ.  Proc,  §  1192.] 
To  All  Whom  It  may  Concern, 

Notice  is  hereby  given,  That,  whereas  I,  the  undersigned, 
am  the  owner  of  [or  if  only  an  interest  in  the  property  is 
claimed  or  held,  state,  "  have  and  claim  an  interest  in  "]  the 
following  described  lot  of  land  in  the  city  and  county  of 
San  Francisco,  state  of  California  [here  describe  land]  ; 

And  that  I  have  within  the  last  three  days  obtained  knowl- 
edge that  the  following  construction  [or  "  alteration "  or 
"repair,"  as  the  case  may  be]  has  been  commenced  to  be 
made  thereon  [or  "  has  been  made,"  as  the  case  may  be,  or 
"  that  the  following  construction  "  (or  "  alteration  "  or  "  re- 
pair ")  is  intended  thereon]  viz.  [here  describe  it]  ;  that  the 
said  construction  [or  "  alteration  "  or  "  repair  "]  is  being 
[or  "  about  to  be  "]    done  without  my  consent,  authority, 

»<  Alaska.     See  Civ.  Code,  §  265. 

Col<»ru«Io.     See  3  Mills's  Ann.  Stats.,  2d  ed.,  §  2871. 

Kevaila.     See  Cutting's  Conip.  Laws,   §  3889. 

New   Mexico.      See   Comp.   Laws,    §  2226. 

Orcson.  See  Belling-er  and  Cotton's  Ann.  Codes  and  Stats.,  S§  5643, 
5668,  as  amended  Gen.  Laws  1907,  p.  293,  §§  1,  6. 

Form,  notice  of  non-responsibility  (held  sufficient,  under  S  5643,  Bel- 
Hnger  and  Cotton's  Ann.  Codes  and  Stats.),  set  out  in  Marshall  v. 
CardineU,   46   Greg.  410,   80  Pac.   Rep.   652. 

Text.     See   "Notice   of   Non-Responsibility,"    §§473    et   seq.,   ante. 


820  MECHANICS'    LIEXS. 

license,  or  permission;  and  notice  is  hereby  given  that  I 
will  not  be  responsible  for  the  same,  or  any  part  thereof, 
and  that  I  will  oppose  any  attempt  to  make  the  cost  of 
the  same,  or  any  part  thereof,  a  lien  upon  the  land  above 
described.  A  B 

Dated  at  San  Francisco  this  day  of  ,  1899. 


Form  No.  18.    Notice  of  Non-Responsibility  by  Owner. 
Mining  claim.^^ 

The  undersigned,  owners  [or,  state  interest]  of  the  Good 
Luck  ]\lines,  with  all  their  mills,  chlorinati on- works,  build- 
ings, ditches,  dams,  pipe  lines,  giants,  and  other  appurte- 
nances, located  in  the  Good  Luck  mining  district,  county  of 
Eldorado,  state  of  California,  having  leased  said  property 
to  J  K  for  a  period  of  three  years,  commencing  from  and 
after  the  second  day  of  January,  1908,  hereby  give  notice 
that  said  undersigned  will  be  in  no  way  responsible  for  any 
debts  contracted  by  said  J  K  or  of  his  agent,  or  any  person 
in  possession  of  said  property,  or  working  on,  improving,  or 
developing  the  same,  for  any  work  or  labor  performed  or 
material  supplied  in  the  working,  development,  or  improve- 
ment of  said  property,  or  in  the  construction,  alteration,  or 
repair  of  any  structure  thereon,  within  said  period  of  said 
lease,  nor  will  said  property,  nor  the  interest  of  the  under- 
signed therein,  be  subject  to  a  lien  for  any  of  such  work  or 
material.  (Signed)  R  V 

Dated  December  26,  1907. 

Form  No.  19.  Statement  of  Contractor.  Made  to  architect 
or  owner  as  to  liens,  to  obtain  payment. 
I,  A  B,  the  party  of  the  second  part  in  the  written  agree- 
ment annexed  [or,  otherwise  identify  the  agreement],  hav- 
ing performed  so  much  of  said  agreement  as  to  entitle  me  to 
the  first  [or,  "  second  "  or  "  third,"  as  the  case  may  be]  pay- 
ment in  said  agreement,  covenanted  by  the  party  of  the  first 

35  Text.     See  "Notice  of  Non-Responsibility,"  §§473  et  seq.,  ante. 
See  Form  No.  17,  notes,  ante. 


FORMS.  821 

part  to  be  paid  to  me,  do  hereby  declare  that  I  do  not  OAve, 
nor  am  I  liable  to,  any  person  or  persons  for  any  work  or 
labor  done  or  performed  for  me  in  the  said  work  so  far  as  it 
has  progressed,  nor  for  any  materials  furnished  to  me  by 
any  person  or  persons  whatever,  in  carrying  on  the  said 
work,  so  far  as  it  has  progressed,  and  that  no  debt  incurred 
in  the  performance  of  said  agreement  by  me  can,  at  any 
time,  under  the  laws  of  the  state  of  California,  be  made  a 
lien  on  the  building  or  real  property  in  said  agreement  de- 
scribed. This  statement  is  made  to  enable  me  to  obtain  the 
said  payment,  which  I  claim  to  be  now  due  under  said  agree- 
ment.   

Dated  this  day  of  ,  1899. 


Form  No.  20.     Notice  to  Owner  of  Furnishing  Materials  or 
Performing-  Labor.'" 
[Kerr's  Cyc.  Code  Civ.  Proc,  §  1184.] 
To 

Notice  is  hereby  given,  That  the  undersigned  has  per- 
formed labor  [or,  "  furnished  materials,"  or  both,  or  "  has 
agreed  to  "  do  so,  as  the  case  may  be]  for ,  your  con- 
tractor [or,  "a  person  acting  by  your  authority"],  in  the 
construction  [or,  "  alteration  "  or  "  repair  "]  of  that  certain 
structure  or  improvement  situate  [here  insert  description  of 
property] . 

The  following  is  a  statement,  in  general  terms,  of  the  kind 
of  labor  [or,  "  materials,"  inserting  cost,  dates,  quantities, 
and  (lualities]. 

The  amount  in  value  of  that  already  done  [or,  "  fur- 
nished," or  both],  as  near  as  may  be,  is dollars;  and 

the  amount  in  value  of  the  whole  agreed  to  be  done   [or, 
"  furnished,"  or  both]  is dollars. 

3«  Text.     See   "  Notice   to   Owner,"    §§  547   et  seq.,   ante. 
Ari/,«na.     See  Rev.   Stats.   1901,  §§2890,  2899. 

Colorado.       The     foregoing     form     substantiaUy     complies     -witii     3 
Mills's  Ann.  Stats.,  2d  ed.,  §  2868. 
Huwnil.     See  Rev.  Laws,  §  2174. 
Oklalioiun.     See  Rev.  &  Ann.  Stats.,    (4819)   §621. 
Wyomint;.     See  Rev.  Stats.,  §  2876   (mines). 


822  mechanics'  liens. 

And  you  are  hereby  notified  to  withhold  from  said  con- 
tractor [or,  "  person  acting  by  your  authority  "]  sufficient 
money  to  answer  the  foregoing  claim,  and  any  lien  that  may 
be  filed  therefor  for  record  under  chapter  two,  title  four, 
part  three,  of  the  Code  of  Civil  Procedure  of  California 
[or  give  title  of  statute],  including  counsel  fees,  besides 
costs,  provided  for  in  said  chapter. 

Dated  this day  of ,  1899.  

Form  No.  21.     Notice,  by  Owner,  of  Completion  of  Building, 
or  of  Cessation  from  Labor.^' 
[Kerr's  Cyc.  Code  Civ.  Proc,  §  1187.] 
To  Whom  It  may  Concern. 

Notice  is  hereby  given  by  G  H,  the  owner  of  the  property 
hereinafter  described : 

That  the  building  ["  improvement,"  or  "  structure,"  or  the 
"  alteration,"  "  addition  to,"  or  "  repair  thereof,"  as  the  case 
may  be]  situated  on  the  premises  hereinafter  descrihert,  the 
contract  for  which  was  heretofore,  to  wit,  on  the  second  day 
of  January,  1899,  let  to  A  B,  and  which  contract  was  filed 
for  record  in  the  recorder's  office  of  the  city  and  county  of 
San  Francisco,  state  of  California,  on  the  second  day  of 
January,  1899,  was  actually  completed  on  the  tenth  day  of 
March,  1899,  and  accepted  by  me  on  said  day. 

[Or,  in  case  of  cessation  from  labor  for  thirty  days,  say, 
"  That  there  has  been  a  cessation  from  labor  upon  the  con- 
tract heretofore,  to  wit,  on  the  second  day  of  January,  1899, 
entered  into  between  me  and  A  B,  which  contract  was  filed 
for  record  in  the  recorder's  office  of  the  city  and  county  of 
San  Francisco,  state  of  California,  and  which  said  contract 
is  unfinished,  and  upon  the  building  ['  improvement,'  or 
'  structure,'  or  '  upon  the  alteration,'  *  addition  to,'  or  '  repair 
thereof,'  as  the  case  may  be]  to  be  erected  ['  altered,'  '  added 
to,'  or  'repaired'],  under  said  contract,  upon  the  premises 
hereinafter  described  for  thirty  days,  and  that  the  date  on 
which  such  cessation  actually  occurred  was  the  third  day 
of  February,  1899."]     • 

»'  Text.     See  "Notice  of  Completion,"  §§425  et  seq.,  ante. 


FORMS.  823 

That  the  name  of  the  person  who  caused  the  said  building 
["  improvement  "  or  ''  structure  "]  to  be  erected  [or,  "  said 
alteration,"  "  addition  to,"  or  "repair  to  be  made  "]  is  G  H. 

That  the  nature  of  the  title  of  said  person  is  as  follows: 
Said  G  H  is  and  was  the  owner  in  fee-simple  of  said  prop- 
erty. 

That  the  following  is  a  description  of  said  property  [insert 
description,  at  least  sufficient  for  identification].         G  H 

Dated  this  eleventh  day  of  March,  1899. 


>, }  ''• 


Form  No.  22.     Verification  to  Foregoing  Notice.^^ 

State  of  California, 

City  and  County  of  San  Francisco, 

G  H,  being  first  duly  sworn,  deposes  and  says :  That  he  is 
the  owner  [or,  in  case  of  verification  by  some  other  person, 
"that  he  is  the  book-keeper  (or  agent),  and  authorized  to 
make  and  file  the  foregoing  notice  and  to  make  this  verifica- 
tion in  behalf  of  the  owner  "]  of  the  property  described  in 
the  foregoing  notice,  and  who  is  mentioned^  therein ;  that 
he  has  [heard]  read  said  notice,  and  knows  the  contents 
thereof,  and  that  the  same  is  true  of  his  own  knowledge 
[in  case  of  verification  by  agent,  add  reason  for  making 
verification].  G  H 

Subscribed  and  sworn  to  before  me  this  eleventh  day  of 
March,  1899. 

[Seal]  ,  Notary  Pul)lic. 

Form  No.  23.     Claim  of  Lien.     Original  Contractor. 
Structure.^^ 
A  B  -) 

G  hJ 

To  Whom  It  may  Concern. 

Notice  is  hereby  given:  1.  That  I,  A  B,  of  the  city  and 
county  of  San  Francisco,  state  of  California,  have  performed 

•»  Text.     See  "Verification  of  Claim,"  §410,  ante. 

"  This  form  contains  some  statements  not  absolutely  required  by 
Kerr's  Cy«.  Code  Civ.  Froo.,  §  1187:  but  to  render  the  same  more 
general,  in  view  of  decisions  in  other  jurisdictions,  it  is  given  as 
above. 


824  mechanics'  liens. 

labor  and  furnished  materials  in  the  construction  ["  altera- 
tion," "  addition  to,"  or  "  repair,"  or  show  that  the  nature 
of  the  labor  is  within  the  statute]  of  that  certain  building, 
improvement,    or   structure    [or,    show   that   the   object   is 

Text.     See  "  Contents  of  Claim,"  §§  370  et  seq.,  ante. 

Form,  claim  of  lien  held  sufficient:  See  Weldon  v.  Superior  Court, 
138  Cal.  #27,  428,  71  Pac.  Rep.  502. 

Alaska.     Similar  form  can  be  used:  Civ.  Code,   §  266. 

Ariseona.  See  Rev.  Stats.  1901,  §  2889  (contract  or  itemized  ac- 
count); Kev.  Stats.  1901,  §2891  (description);  Rev.  Stats.  1901,  |  2898 
(attested  account). 

Colorado.     Sii^iilar   form:    3   Mills's  Ann.    Stats.,   2d   ed.,    §2875. 

Hawaii.     See  Rev.   Laws.   §  2174. 

Idalio.     Similar  form:  Sess.  Laws  1899,  p.  148,  §  6. 

Montana.  A  just  and  true  account  of  the  amount  due  (substan- 
tially the  same  as  under  the  California  statute)  required;  but  "terms, 
time  given,  and  conditions  of  contract "  not  required  by  statute.  See 
Code  Civ.  Proc,   §  2131,  as  amended  Laws  1901,  p.   162. 

Nevada.  Claim  of  lien  same  as  in  California,  under  amendment 
Stats.  1903,  p.  51  (Cutting's  Comp.  Laws,  §3885).  Amount  must  be 
over  $5. 

New  Mexico.     Similar  form:  Comp.  Laws,  §  2221. 

Form,  claim  of  lien;  substance  of  claim  set  out;  held  to  be  suffi- 
cient (under  Comp.  Laws  1897):  See  Pearce  v.  Albright,  12  N.  M.  202, 
76  Pac.  Rep.  286. 

Olvlahouia.  Different  form:  See  Rev.  &  Ann.  Stats.,  (4818)  §  620, 
(4819)  §  621.  Claim  can  be  amended:  See  Rev.  &  Ann.  Stats.,  (4821) 
§  623. 

See  form  of  "  statement,"  Blanshard  v.  Schwartz,  7  Okl.  23,  54  Pac. 
Rep.   303. 

Form,  statement,  claim  of  lien:  See  Ferguson  v.  Stephenson- 
Brown  L.  Co.,   14  Okl.   148,  77  Pac.  Rep.   184. 

Form,  notice  of  filing  claim  served  on  owner,  approved:  See  Fer- 
guson V.  Stephenson-Brown  L.  Co.,  14  Okl.  148,  77  Pac.  Rep.  184. 

Oregon.  As  to  mines,  Bellinger  and  Cotton's  Ann.  Codes  and  Stats., 
§5669,  as  amended  Gen.  Laws  1907,  p.  295;  and  as  to  structures,  Bel- 
linger and  Cotton's  Ann.  Codes  and  Stats.,  §  5644.  California  form 
applicable;  but  statement  of  "terms,  time  given,  and  conditions  of 
the  contract  "  not  expressly  required. 

Utali.  Claim  should  contain  a  notice  of  intention  to  claim  and  hold 
a  lien.  Mention  of  name  of  reputed  owner  not  required.  The  time 
when  the  first  and  last  labor  was  performed,  or  the  first  and  last 
materials  were  furnished,  should  be  stated:  See  Rev.  Stats.,  §  1386,  and 
also   §§  1388,  1399. 

^Va.sllington.     Statutory  form  of  claim:   See  Pierce's  Code,   §  6106. 

Form,  claim  of  lien  (verification  and  formal  parts  omitted)  stated 
by  court  to  be  sustantially  in  the  form  set  out  and  provided  for  by 
2  Ballinger's  Ann.  Codes  and  Stats.,  §  5904,  which  superseded  1  Hill's 
Code,  §  1667:  See  Seattle  L.  Co.  v.  Sweeney,  33  Wash.  691,  74  Pac.  Rep. 
1001. 

Form,  claim  of  lien,  extra  work;  form  stated  in  substance;  held 
sufficient  (under  2  Ballinger's  Ann.  Codes  and  Stats.,  §5904):  See 
Young  v.  Borzone,  26  Wash.  4,  66  Pac.  Rep.  135,  140,  421. 

Wjoniing.  See  Rev.  Stats.,  §§  2871,  2872,  2879  (mines),  and  §  2893 
(structures). 


FORMS.  825 

within  the  statute]  now  upon  that  certain  lot  or  parcel  of 
land  situate  in  the  city  and  county  of  San  Francisco,  state 
of  California,  and  sought  to  be  charged  with  the  lien  hereby 
claimed,  and  more  particularly  described  as  follows,  to  wit 
[insert  description  sufficient  for  identification]. 

2.  That  G  H  is  the  name  of  the  owner  [or,  "  reputed 
owner "]  of  said  premises,  and  caused  said  building 
["  structure  "  or  "  improvement,"  or  state  object]  to  be  con- 
structed [or,  "altered,"  "added  to,"  or  "repaired";  or 
state  nature  of  labor] . 

3.  That  the  name  of  the  person  by  whom  I  was  employed, 
and  to  whom  I  furnished  said  materials,  is  G  H. 

4.  That  on  the  second  day  of  January,  1899,  I  entered  into 
a  contract  with  said  G  H  for  the  construction  ["  alteration," 
"addition  to,"  or  "repair"]  of  said  building  ["improve- 
ment "  or  "  structure  "],  and  the  following  is  a  statement  of 
the  terms,  time  given^  and  conditions  of  said  contract,  to 
wit  [here  be  careful  to  insert  exactly  all  the  terms,  time  of 
payment  given,  and  conditions  expressly  agreed  upon,  and, 
if  the  contract  is  in  writing,  it  is  advisable  to  copy  the  exact 
language  of  the  same]. 

5.  That  said  contract  has  been  fully  performed  on  my  part, 
and  the  same  was  completed,  and  the  construction  ["  altera- 
tion," "addition  to,"  or  "repair"]  of  said  building  ["im- 
provement" or  "structure"]  was  completed  on  the  tenth 
day  of  March,  1899,  and  sixty  days  [or,  state  statutory 
period]  have  not  elapsed  since  the  same  were  completed. 

6.  That  the  following  is  a  statement  of  my  demand,  after 

deducting  all  just  credits  and  offsets,  to  wit:  [here 

insert  the  contract  price,  the  amount  paid  thereon,  and  the 
balance  due  and  unpaid,  "  after  deducting  all  just  credits 
and  offsets."  In  those  states  where  a  "  statement  of  ac- 
count "  is  required,  the  details  of  debit  and  credit  should  be 
set  forth.  It  is  advisable  in  all  cases  to  give  the  exact  dates 
of  the  first  and  last  items] . 

Wherefore,  I  claim  a  lien  upon  said  property,  and  the 
benefit  of  the  law  relating  to  the  liens  of  mechanics  and 
others  upon  real  property,  to  wit,  chapter  two,  title  four, 
part  three,  of  the  Code  of  Civil  Procedure  of  the  state  of 
California  [or  insert  title  of  statute].  A  B 


826 


MECHANICS     LIENS. 


SS. 


Form  No.  24.     Verification  to  the  Foregoing.^ 
State  of  California, 

City  and  County  of  San  Francisco, 

A  B,  being  duly  sworn,  deposes  and  says :  Tliat  he  is  the 
["  agent,"  etc.  Compare  verification  to  notice  of  completion 
by  agent,  Form  No.  22]  person  named  as  claimant  in  the 
foregoing  claim  of  lien;  that  he  has  [heard]  read  the  same, 
and  knows  the  contents  thereof,  and  that  the  same  is  true 
of  his  own  knowledge ;  and  that  the  contents  show  (among 
other  things)  a  correct  statement  of  said  claimant's  demand, 
after  deducting  all  just  credits  and  offsets.  A  B 

Subscribed  and  sworn  to  before  me  this  twelfth  day  of 
March,  1899. 

[Seal]  . ,  Notary  Public. 


Form  No.  25.     Claim  of  Lien.     (Owner's  material-man 
or  laborer.)     Structure. 

[See  Form  No.  23.] 

L  M 

V. 

G  H 

To  Whom  It  may  Concern. 

Notice  is  hereby  given.  That  I,  L  M.  of  the  city  and  county 
of  San  Francisco,  state  of  California,  have  furnished  ma- 
terials [or,  "performed  labor"],  as  hereinafter  stated,  in 
the  construction  ["  alteration,"  "  addition  to,"  or  "  repair," 


*"  Text.     See  "Verification,"   §410,  ante. 

Alaska.     Similar  form:  See  Civ.  Code,  §  266. 

Colorado.     Similar  form:  See  3  Mills's  Ann.  Stats.,  2d  ed.,  §  2875. 

Idaho.     Affidavit   that   claimant   believes   the   same   to    be   just:    See 
Sess.   Laws    1899,   p.    148,   §  6. 

Nevada.     Similar     form:   See     Cutting's     Comp.     Laws,     §  3885,     as 
amended  Stats.   1903,   p.   51. 

OreKon.     Similar  form:   See  Bellinger  and  Cotton's  Ann.  Codes  and 
Stats..  §  5644;  and  §  5669,  as  amended  Gen.  Laws   1907,  p.  295. 

See  form,  Curtis  v.  Sestanovich,  26  Oreg.  107,  37  Pac.  Rep.  67. 

Utah.     Similar  form:   See  Rev.   Stats.,   §§1386,  1388,   1399. 

AVashingrtou.     Statutory   form:   See  Pierce's  Code,   §  6106. 

Wyoming-.     See  Rev.  Stats.,   §§  2871,  2872,  2879,   2893. 

*^  See  notes  to  Forms  23,  24,  ante. 

Text.     See  "Contents  of  Claim,"  §§370  et  seq.,  ante. 

Form,   material-man's  claim   of   lien    (two   forms),    set   out  and  ap- 
proved in  Germania  B.  &  L.  Assoc,  v.  Wagner,  61  Cal.  349 


I 


FORMS. 


827 


or  state  nature  of  labor]  of  that  certain  building  ["  improve- 
ment "  or  "  structure,"  or  state  object  of  labor]  now  upon 
that  certain  lot  or  parcel  of  land  situate  in  said  city  and 
county  of  San  Francisco,  and  sought  to  be  charged  with 
the  lien  hereby  claimed,  and  more  particularly  described  as 
follows,  to  wit:  [insert  description]. 

[Insert  paragraph  2  of  Form  No.  23.] 

That  the  name  of  the  person  to  whom  I  furnished  said 
materials  [or,  "  by  whom  I  was  employed  "]  is  G  H. 

That  said  materials  were  so  furnished  [or,  "  said  labor 
was  performed  "]  between  the  second  day  of  January,  1899 
[date  of  first  item],  and  the  first  day  of  February,  1899 
[date  of  last  item.  Be  sure  that  the  dates  are  correct]  ;  and 
the  same  was,  at  the  special  instance  and  request  of  said 
G  H,  furnished  for  and  actually  used  in  said  construction 
["  alteration,"  "  addition  to,"  or  "repair"],  and  the  follow- 
ing is  a  statement  of  the  terms,  time  given,  and  conditions 
of  my  contract  therefor  with  said  G  II,  to  wit : 

I  sold  and  delivered  between  the  second  day  of  January, 
1899,  and  the  first  day  of  February,  1899,  to  said  G  H,  cer- 
tain material,  to  wit,  twenty  thousand  feet  one-by-four  floor- 
ing, at  the  agreed  price  of  twenty  dollars  per  thousand  feet, 
net,  and  said  G  H  agreed  to  pay  therefor  upon  the  comple- 
tion of  said  building  [or,  in  the  case  of  labor,  "  I  was  em- 
ployed by  said  G  H  as  a  journeyman  carpenter  for  tAventy 
days  in  and  al)out  said  building,  at  the  agreed  wages  of  five 
dollars  per  day,  and  said  G  H  agreed  to  pay  the  same 
weekly."    See  Form  No.  23]. 

That  said  contract  has  been  fully  performed  on  my  part, 
and  the  same  was  completed,  and  the  construction  ["  altera- 
tion," "  addition  to,"  or  "  repair  "]  of  said  building  ["  im- 
provement "  or  "  structure  "]  was  completed  on  the  tenth 
day  of  March,  1899,  and  notice  thereof  was  on  said  day  filed 
with  the  recorder  of  said  city  and  county,  by  said  owner, 
and  thirty  [or,  the  statutory  period]  days  have  not  elapsed 
since  said  completion  [and  the  filing  of  notice  thereof]. 

That  the  following  is  a  statement  of  my  demand,  after 
deducting  all  just  credits  and  offsets : 


828  mechanics'  liens. 

The  total  agreed  price  of  said  lumber  is  four  hundred 
dollars ;  said  G  H  has  paid  me,  on  account  thereof,  the  sum 
of  one  hundred  dollars;  and  the  balance  —  three  hundred 
dollars  —  is  still  due  and  unpaid,  after  deducting  all  just 
credits  and  offsets  [or,  in  the  case  of  labor,  "  the  total  agreed 
value  of  my  labor  is  one  hundred  dollars,  and  no  part  of  the 
same  has  been  paid,  and  the  whole  thereof  is  due  and  unpaid, 
over  and  above  all  just  credits  and  offsets  "]• 

AVherefore,  I  claim  a  lien  for  my  said  demand  [as  in 
Form  No.  23].  L  M 

[Verification  as  in  Form  No.  24.] 

Form  No.  26.    Miner's  Claim  of  Lien.     General  form/^ 
L  M  ^ 

V. 

California  Consolidated  Mining 

Company  (a  Corporation). 
To  Whom  It  may  Concern. 

Notice  is  hereby  given.  That  I,  L  M,  of  Grass  Valley, 
Nevada  County,  state  of  California,  have  performed  labor 
as  a  miner,  as  hereinafter  stated,  in  a  certain  mining  claim, 
commonly  known  as  and  called  the  "  Klondyke  Claim,"  situ- 
ate in  the  Chilkoot  mining  district,  in  said  county,  and 
sought  to  be  charged  with  the  lien  herein  claimed,  and  Avhich 
is  more  particularly  described  as  follows  [here  describe  the 
mining  claim,  stating  the  number  of  feet  of  ground  over 
which  the  claim  extends,  and  which  it  includes,  all  of  Avhich 
will  generally  be  found  in  the  deed  or  claim  recorded  in  the 
office  of  the  recorder  of  the  district  or  county]. 

«  This  form  may  be  chang-ed  so  as  to  be  adapted  to  the  claim  of  a 
contractor  for  repairing-  in  a  mining  claim,  or  for  erecting-  an  aque- 
duct or  flumes  and  sluices  leading-  to  or  from  a  mining  claim,  or  ex- 
cavating a  tunnel  in  or  a  ditch  or  canal  leading  to  a  mining  claim, 
or  similar  work. 

Form,  claim  of  lien,  mining  claim:  See  Castagnetto  v.  Copperto-wn 
Min.  &  S.  Co.,  146  Cal.  339,   80  Pac.  Rep.   74. 

See  Forms  Nos.  23,   24,   25,  and  notes,  ante. 

Text.     See  "Contents  of  Claim,"  §§370  et  seq.,  ante. 

jVew  Mexico.  Form,  miner's  claim  of  lien,  superintending  mine, 
set  forth:  See  Boyle  v.  Mountain  Key  M.  Co.,  9  N.  M.  237,  50  Pac.  Rep. 
347  (the  lien  was  held  void,  but  only  owing  to  the  nature  of  the 
labor). 


FORMS.  829 

That  the  California  Consolidated  Mining  Company  (a 
corporation)  is  the  name  of  the  owner  [or  reputed  owner] 
of  said  mining  claim. 

That  J  K  is  the  name  of  the  person  by  M^hom  I  was  em- 
ployed to  perform  the  labor  herein  mentioned,  and  who,  as 
superintendent,  had  charge  of  the  mining  in  said  claim,  by 
authority  of  said  owner. 

That  the  following  is  a  statement  of  the  terms,  time  given, 
and  conditions  of  the  contract  under  which  I  performed  said 
labor,  to  wit: 

Said  J  K  agreed  to  pay  me  five  dollars  per  day,  payable 
upon  demand,  as  long  as  I  worked  for  said  corporation,  as 
a  miner  in  said  claim  [insert  all  provisions  expressly  agreed 
upon] . 

That,  under  said  agreement,  I  labored  as  a  miner  in  the 
tunnel  on  said  claim  [or  otherwise  show  that  it  was  labor 
in  a  mining  claim]  for  ten  days,  to  wit,  from  the  fifth  day 
of  October,  1897  [the  date  of  commencing  said  labor] ,  to  the 
fourteenth  day  of  October,  1897  [the  date  of  the  ceasing  of 
said  labor],  both  inclusive. 

That  thirty  days  [or  state  statutory  time]  have  not  expired 
since  the  performance  by  me  of  said  labor. 

That  the  following  is  a  statement  of  my  demand,  after 
deducting  all  just  credits  and  offsets.  The  total  amount  of 
agreed  wages  was  fifty  dollars,  and  there  has  been  paid  to 
me,  on  account  thereof,  the  sum  of  twenty-five  dollars,  and 
the  balance  thereof,  to  wit,  twenty-five  dollars,  still  remains 
due  and  unpaid,  over  and  above  all  just  credits  and  offsets, 
although  I  have  demanded  the  same  from  said  corporation, 
for  which  balance,  to  wit,  twenty-five  dollars,  I  hereby  claim 
a  lien  upon  said  mining  claim,  together  with  the  improve- 
ments and  appurtenances  [and  the  works  owned  and  used 
by  said  corporation  for  reducing  the  ores  from  said  mining 
claim],  under  and  by  virtue  of  chapter  two,  part  three,  title 
four,  of  the  Code  of  Civil  Procedure  of  the  state  of  Cali- 
fornia [or  insert  title  of  statute].  L  M 

[Verification  as  in  Form  No.  24.] 


830  mechanics'  liens. 

Form  No.  27.  Claim  of  Lien.  Subclaimant;  subcontractor 
in  the  first  degree;  contractor's  material-man  or  laborer.*^ 
Structure. 

[See  Form  No.  23.] 

NO  -| 

A  B  and  G  H  J 

To  AVliom  It  may  Concern. 

Notice  is  hereby  given,  That  I,  N  0,  of  the  city  of  Oakland, 
county  of  Alameda,  state  of  California,  have  performed 
labor  and  furnished  materials  [or  either,  in  the  case  of  con- 
tractor's material-man  or  laborer,  respectively]  in  the  con- 
struction [see  Form  No.  23]  of  that  certain  building,  im- 
provement, or  structure  now  upon  that  certain  lot  or  parcel 
of  land  situate  in  the  city  and  county  of  San  Francisco, 
state  of  California,  and  sought  to  be  charged  with  the  lien 
hereby  claimed,  and  more  particularly  described  as  follows, 
to  wit: [insert  description]. 

That  G  H  is  the  name  of  the  owner  [or,  "  reputed  owner  "] 
of  said  premises,  and  caused  said  building  to  be  constructed. 

That  A  B  is  the  name  of  the  contractor,  who,  on  the  second 
day  of  January,  1899,  as  such  contractor,  employed  by  said 
owner,  G  H,  and  in  charge  of  the  construction  of  said  build- 
ing, entered  into  a  contract  [in  writing]  with  me,  under  and 
by  which  I  was  to  perform  the  labor  on  and  furnish  the 
materials  for  all  the  brickwork  in  said  building  [or,  set  out 
the  contract,  if  for  labor  or  materials ;  as  in  Forms  Nos.  23 
and  25],  and  the  following  is  a  statement  of  the  terms,  time 

given,  and  conditions  of  said  contract,  to  wit:  [insert 

the  same.    See  Form  No.  23] ." 

*"  Form,  claim  of  lien,  contractor's  material-man:  See  Madary  v. 
Smartt,  1  Cal.  App.  498,  500,  82  Pac.  Rep.  561.  Kerr's  Cye.  Code  Civ. 
Proc,  §1187,  provides  specifically  "what  matters  and  things  are  es- 
sential to  be  stated  in  a  claim  of  lien,  all  of  which  appear  in  this 
lien." 

See  preceding  forms,   and  notes  to   Forms  23,   24,   ante. 

Text.     See  "  Contents  of  Claim,"   §§  370  et  seq.,  ante. 

Colorado.  Form,  claim  of  lien  for  materials,  contractor's  material- 
man: See  Sickman  v.  Wollett,  31  Colo.  58,  71  Pac.  Rep.  1107  (held  suf- 
ficient). 

**  This  form  may  be  adapted  for  subcontractors  in  the  second  and 
subsequent   degrees,   and   subcontractors'   laborers  and   material-men. 


FORMS. 


831 


That  said  contract  has  been  fully  performed  on  my  part, 
and  the  same  was  completed,  and  the  construction  of  said 
building  was  completed,  on  the  tenth  day  of  JMarch,  1899, 
and  on  said  day  said  G  H  filed  with  the  recorder  of  said 
county  notice  of  completion  thereof,  and  thirty  days  have 
not  elapsed  since  the  said  completion  and  the  said  filing  of 
notice  thereof. 

That  the  following  is  a  statement  of  my  demand,  after 
deducting  all  just  credits  and  offsets : N  0 

[See  preceding  forms.] 

[Conclude  as  in  previous  forms.] 

[Verification  as  in  Form  No.  24.] 

Form  No.  28.     Claim  of  Lien  against  Two  Contiguous  Build- 
ings Owned  by  the  Same  Person.' ■     General  form. 
[Kerr's  Cyc.  Code  Civ.  Proc,  §§  1187,  1188. J 
[See  Form  No.  23.] 
A  B 

V. 

G  H 

To  Whom  It  may  Concern. 

Notice  is  hereby  given,  That  I,  A  B,  of  [state  residence], 
have  performed  labor,  etc.  [see  preceding  forms],  in  the 
construction  [or,  state  nature  of  labor]  of  those  certain 
buildings  [or,  state  object  of  labor]  now  upon  those  certain 
lots  or  parcels  of  land  situate  in  the  city  and  county  of  San 
Francisco,  state  of  California,  and  sought  to  be  charged  with 
the  lien  hereby  claimed,  and  more  particularly  described  as 
follows,  to  wit : 

by  changing  the  first  part  of  this  paragraph,  in  manner  foUowing, 
thus:  "That  A  B  is  the  name  of  the  contractor,  who,  on  the  second 
day  of  January,  1899,  as  such  contractor,  in  charge  of  the  construc- 
tion of  said  building,  and  employed  by  the  owner,  G  H,  therefor, 
entered  into  a  contract  with  N  O  P,  as  subcontractor,  to  perform  all 
the  tinning  to  be  performed  in  the  construction  of  said  building,  and 
that  said  subcontractor,  N  O  P,  in  charge  of  said  tinning,  entered 
into  a  contract  with  me,  under  and  by  which  I  was  to  perform  the 
labor,"   etc.    (following  rest  of  paragraph). 

■"^  Text.  See  "  Two  or  More  Descriptions,"  §§  406  et  seq.,  and  §§  502 
et  seq.,  ante. 

Idaho.     See    Sess.    Laws    1899,    p.    152,    §  7. 

Nevada.     See  Cutting's  Comp.  Laws,   §  3886. 

New    Mexico.     See    Comp.    Laws,    §  2222. 

Washington.     See  Pierce's  Code,   §   6109. 


832  mechanics'  liens. 

[Insert  description  of  each  piece  separately.] 

[Insert  paragraphs  2,  3,  4,  and  5,  as  in  Form  No.  23,  mak 
ing  the  statements  applicable  to  both  buildings.] 

That  the  following  is  a  statement  of  my  demand,  after 
deducting  all  just  credits  and  offsets,  to  wit : 

[Here  insert  statements  showing  the  total  amount  on  each 
object,  the  amounts  paid  on  each,  if  any,  and  the  balance 
due  on  each ;  for  instance :  "  I  performed  labor  as  a  hodman 
in  carrying  bricks  and  mortar  to  said  contiguous  buildings 
for  a  period  of  thirty  days,  as  aforesaid,  at  the  agreed  rate 
of  three  dollars  per  day,  making,  for  said  work  on  said  two 
buildings,  the  sum  total  of  ninety  dollars ;  that  twenty  days 
of  said  labor,  of  the  agreed  value  of  sixty  dollars,  was  per- 
formed on  the  east  building,  situate  on  the  lot  first  herein- 
above described,  that  no  part  thereof  has  been  paid  to  me, 
and  that  the  amount  due  and  unpaid  to  me  thereon  is  said 
sum  of  sixty  dollars,  over  and  above  all  just  credits  and  off- 
sets ;  that  ten  days  of  said  labor,  of  the  agreed  value  of  thirty 
dollars,  was  performed  on  the  west  building,  situate  on  the 
lot  secondly  above  described,  that  the  sum  of  twenty  dollars 
has  been  paid  thereon  to  me,  and  that  the  amount  due  and 
unpaid  to  me  thereon  is  the  sum  of  ten  dollars,  over  and 
above  all  just  credits  and  offsets;  and  that  the  sum  total 
due  and  unpaid  to  me  on  said  two  contiguous  buildings  is 
seventy  dollars,  over  and  above  all  just  credits  and  offsets."] 

Wherefore  [conclude  as  in  Form  No.  23].  A  B 

[Verification  as  in  Form  No.  24.] 

Form  No.  29.     Claim  of  Lien  for  Grading  Lot  in  Incorpo- 
rated City.'" 
[Kerr's  Cyc.  Code  Civ.  Proc,  §  1191.] 
A  B 

V. 

G  H 

To  Whom  It  may  Concern. 

Notice  is  hereby  given,  That  I,  A  B,  of  the  city  and 
county   of   San   Francisco,    state   of   California,    have   per- 

■•8  Text.  See  §364;  and  "Grading  and  Other  Work,"  §§139  et  seq., 
ante. 


FORMS.  833 

r/  formed  labor  and  furnished  materials  in  filling  in  and  grad- 
ing the  lot  hereinafter  described  in  the  incorporated  city  of 
San  Jose,  county  of  Santa  Clara,  state  of  California,  and 
sought  to  be  charged  with  the  lien  hereby  claimed,  and  more 

^  particularly  described  as  follows,  to  wit :  [insert  de- 
scription] . 
^'     That  G  H  is  the  name  of  the  owner  of  said  lot,  and  that 
said  G  H  caused  said  lot  to  be  graded,  filled  in,  and  improved 
as  herein  stated. 

X  That  G  H  is  the  name  of  the  person  by  whom  I  was  em- 
ployed, and  to  whom  I  furnished  said  materials  as  herein 
stated. 

That  said  labor  was  performed  and  materials  furnished 
at  the  special  instance  and  request  of  said  owner,  G  H, 
between  the  first  day  of  March,  1898,  and  the  tenth  day  of 
March,  1898,  and  the  following  is  a  statement  of  the  terms, 
time  given,  and  conditions  of  the  contract  under  which  the 
same  was  performed  and  furnished,  to  wit :  On  the  first  day 
of  March,  1898,  I  agreed  to  fill  in  with  sand,  and  grade  to 
the  ofiicial  grade  of  said  street,  the  said  lot  within  tAventy 
days  from  said  date,  and  said  G  H  agreed  to  pay  me  therefor 
the  sum  of  two  hundred  dollars,  in  gold  coin  of  the  United 
States,  within  ten  days  after  the  completion  thereof,  or  on 
the  completion  thereof,  less  five  per  cent  discount,  at  my 
option. 

That  said  contract  has  been  fully  performed  on  my  part, 

and  the  same  was  completed,  and  said  filling,  grading,  and 

improvement  was  completed,  on  the  tenth  day  of  March, 

1898,  and  thirty  days  have  not  elapsed  since  the  same  was 

,    completed,  and  since  said  sum  became  due  and  payable. 

^         That  the  following  is  a  statement  of  my  demand,  after 

See  notes  to  Foi-ms  Nos.  23  and  24,  ante. 
Alaska.     See  Civ.   Code,   §  269. 
Idaho.     See  Ses.s.  Law.s   1899,   p.   147,   §  3. 
Moutsina.     See    Code    Civ.    Proc,    §  2130. 
Nevada.     See  Cutting's  Comp.  Laws,  §  3882. 
New  Mexico.     See   Comp.   Laws,   §  2218. 

Oregon.     See  Belling-er  and  Cotton's  Ann.  Codes  and  Stats.,   §§  5647, 
6663. 

WaHhington.     See  Pierce's  Code,   §  6104. 
Mech.   Liens — 53 


834  mechanics'  liens. 

deducting  all  just  credits  and  offsets:  The  sum  total  of  said 
contract  price,  to  wit,  two  hundred  dollars,  in  gold  coin  of 
the  United  States,  after  deducting  all  just  credits  and  offsets, 
no  part  of  which  has  been  paid  [although  more  than  ten  days 
have  elapsed  since  said  completion] . 

Wherefore  [conclude  as  in  Form  No.  23].  A  B 

[Verification  as  in  Form  No.  24.] 

Form  No.  30.     Owner's  Notice  to  Contractor  to  Defend  Lien 

Suits.^' 

[Kerr's  Cyc.  Code  Civ.  Proc,  §  1193.] 
To  Mr.  A  B. 

Sir,  —  You  will  please  take  notice  that  an  action  has  been 
commenced  against  me  in  the  superior  court  of  the  state  of 
California,  in  and  for  the  city  and  county  of  San  Francisco, 
by  C  D,  as  plaintiff,  and  in  his  complaint  therein  said  C  D 
claims  a  lien  on  the  property  and  building  which  you  have, 
under  agreement  between  us,  been  constructing  for  me,  situ- 
ate on  F  Street,  in  said  city  and  county,  for  materials  fur- 
nished and  labor  performed  by  him  for  you  in  the  construc- 
tion of  said  building,  to  the  amount  of  one  thousand  dollars. 
I  hereby  require  you  to  defend  said  action  at  your  own  ex- 
pense ;  and  notify  you  that  I  will  withhold  payment  of  any 
amount  to  become  due  under  our  said  contract  during  the 
pendency  of  said  action;  and  in  case  of  judgment  against 
me  or  said  property  upon  the  said  lien,  I  shall  deduct  from 
any  amount  due  or  to  become  due  by  me  to  you,  the  amount 
of  such  judgment,  costs,  and  expenses,  and  will  hold  you 
liable  for  any  excess.  : 

Dated  this day  of ,  19 — 

«  Alaska.     Similar   form:    See   Civ.    Code,    §  272. 
Arizona.     Similar   form:   See   Rev.    Stats.    1901,    §2901. 
Idaho.      Similar  form:   See  Sess.   Laws   1899,   p.   148,   §10. 
Nevada.      Similar   form:   See   Cutting's  Comp.  Laws,   §3890. 
New   Mexico.      Similar  form:   See   Comp.   Laws,   §  2227. 
Oklahoma.     Similar  form:   See  Rev.   &  Ann.   Stats.,    (4822)    §  624. 
Oregon.     Similar  form:  See  Belling-er  and  Cotton's  Ann.  Codes  and 
Stats.,    §  5650. 

\Va.sh!n&ton.     Similar,  form:   See  Pierce's  Code,    §6111. 
■Wyomiog.     Similar  form:   See  Rev.   Stats.,   §  2906. 


MECIIxVNlCS     LIENS. 


835 


Form  No.  31.    Release  of  Lien." 

Know  all  meu  by  these  presents,  That  I,  A  B,  of  the  city 
and  county  of  San  Francisco,  state  of  California,  for  and  in 
consideration  of  the  sum  of  five  hundred  dollars,  gold  coin 
of  the  United  States  of  America,  to  me  in  hand  paid  by  C  D, 
of  the  same  place,  have  released  and  forever  discharged,  and 
by  these  presents  do  release  and  forever  discharge,  the  said 
C  D  from  any  and  all  liability  under  and  by  virtue  of  that 
certain  claim  of  lien,  heretofore,  to  wit,  on  the  third  day  of 
February,  1908,  filed  in  the  office  of  the  county  recorder  of 
the  city  and  county  of  San  Francisco,  state  of  California, 
and  recorded  in  liber  five  of  liens,  at  page  601, (and  do 
hereby  forever  release  and  discharge  any  lien  thereby 
claimed,  or  arising  out  of  the  transaction  therein  set  forth ;  ^ 
and  in  consideration  of  the  premises  I  do  hereby  further 
release  and  discharge  the  property  in  said  claim  of  lien 
described  from  any  and  all  claims  and  demands  of  whatso- 
ever nature. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal 
this  fifth  day  of  February,  A.  D.  1908.  A  B   [Seal] 

Witness :  X  Y. 

Form  No.  32.    Complaint  for  Foreclosure  of  Lien."    Original 

contractor,  under  non-statutory  original  contract.     (This 

form  may  be  used  for  owner's  material-man  or  laborer, 

mutatis  mutandis.) 

In  the  Superior  Court  of  the  State  of  California,  in  and  for 

the  City  and  County  of  San  Francisco. 

A  B, 

Plaintiff, 

V. 

G  H,  0  P,  R  S,  and  T  U, 
Defendants. 
Plaintiff  complains  of  defendants,  and  for  cause  of  action 
alleges : 

^'*  Form,  composition  agreement  to  release  contractor  and  build- 
ing; construed:  See  Schroeder  v.  Pissis,  128  Cal.  209,  211,  60  Pac.  Rep. 
758. 

«»  Text.     See   "  Complaint,"   §§  670   et  seq.,   ante. 


836  mechanics'  liens. 

1.  That  at  all  the  times  herein  mentioned  defendant  G  H 
was  and  now  is  the  owner  of  the  real  property  hereinafter 
described. 

2.  That  on  the  first  day  of  March,  1898,  plaintiff  and  the 
defendant  G  H  entered  into  an  agreement,  in  writing, 
whereby  plaintiff  agreed  to  furnish  the  material  and  con- 
struct for  the  said  defendant  G  H  a  certain  building  upon 
the  lands  hereinafter  described,  and  that  the  said  defendant 
G  H  agreed  to  pay  him  therefor  the  sum  of  nine  hundred 
dollars,  in  gold  coin  of  the  United  States,  upon  completion 
thereof  [or  as  the  case  may  be] ,  a  copy  of  which  said  agree- 
ment is  hereto  attached,  marked  "  Exhibit  A,"  and  made  a 
part  hereof. 

3.  That  plaintiff  completed  said  building,  under  the  terms 
of  said  contract,  on  the  tenth  day  of  May,  1898,  and  that  he 
has  fully  kept  and  performed  the  said  agreement  in  all 
things,  and  has  performed  all  conditions  precedent  therein 
en  his  part  to  be  kept  and  performed. 

4.  That  said  defendant  G  II  has  not  paid  the  said  sum  of 
nine  hundred  dollars  mentioned  in  said  agreement,  nor  any 
part  thereof,  although  plaintiff  has  often  demanded  pay- 
ment thereof  from  said  defendant  G  H. 

5.  That  the  lands  upon  which  said  building  was  so  erected 

under  said  contract  are  described  as  follows,  to  wit :  

[insert  description,  such  as  would  be  proper  upon  foreclosure 
of  mortgage]. 

6.  That  the  same  is  and  includes  the  land  required  for  the 
convenient  use  and  occupation  of  said  building. 

7.  That  the  plaintiff  began  to  furnish  the  materials  for 
said  building,  and  to  perform  said  labor  thereon,  under  said 
contract,  on  the  second  day  of  March,  1898,  and  that  all  said 
material  was  furnished  for  and  actually  used  in  the  con- 
struction of  said  building. 

8.  That  thereafter,  and  within  ninety  days  after  the  com- 
pletion of  said  contract  and  of  said  building,   and  within 

This  form  may  be  adapted  for  use  in  Alaska,  Oregon,  Idaho,  and 
Nevada. 

Colorado.     Also  aUege. service  of  notice  of  intention  to  file  claim. 

AVnshington.  Form,  general  statement. of  the  requirements  of  the 
complaint  under  act  of  Marcli  6,  1897,  giving  laborers  a  general  lien 
on  all  property  of  certain  corporations,  etc.:  See  Fitch  v.  Applegate, 
24   Wash.    31,   64   Pac.   Rep.    147. 


FORMS,  837 

ten  daj's  after  the  filing  in  the  office  of  the  county  recorder 
of  said  city  and  county  of  a  notice  of  completion  thereof  by 
the  owner  of  said  property  [or,  set  forth  facts  showing  that 
the  claim  was  filed  within  the  statutory  time],  to  wit,  on  the 
twentieth  day  of.  May,  1898,  plaintiff  filed  for  record  with 
the  county  recorder  of  said  city  and  county  his  claim  of 
lien,  in  writing,  a  copy  of  which  is  hereto  annexed,  marked 
"  Exhibit  B,"  and  made  a  part  hereof  [if  it  is  not  desired  to 
annex  a  copy  of  the  claim  of  lien,  state  "  that  the  same  con- 
tained a  statement  of  his  demand,  and  the  amount  due  to 
plaintiff  for  said  labor,  and  materials  furnished  for  and 
actually  used  in  the  construction  of  said  building,  as  afore- 
said, after  deducting  all  just  credits  and  offsets  " ;  and  the 
name  of  the  owner  of  said  premises,  and  the  name  of  the 
person  who  employed  plaintiff  and  to  whom  plaintiff  fur- 
nished said  materials;  and  a  statement  of  the  terms,  time 
given,  and  conditions  of  said  contract,  with  a  description 
of  the  said  property  to  be  charged  with  said  lien,  sufficient 
for  identification ;  or,  set  forth  the  facts  required  to  be  stated 
in  the  claim  of  lien,  by  the  statute]  ;  and  that  said  claim  of 
lien  was  verified  by  the  oath  of  plaintiff,  subscribed  and 
sworn  to  before  M  B,  a  notary  public  in  and  for  said  city 
and  county,  and  that  said  notary  public  then  certified  to 
said  oath  under  his  hand  and  seal  of  office,  and  that  said 
oath  was  attached  to  said  claim  of  lien  and  filed  there- 
with, and  thereafter,  on  said  day,  said  claim  of  lien  and 
oath  were  recorded  by  said  recorder  in  the  office  of  said 
recorder,  in  a  book  kept  by  him  for  that  purpose,  to  wit, 
in  liber  58  of  liens,  at  page  62;  and  that  ninety  days  have 
not  elapsed  since  the  filing  of  said  claim  of  lien  for  record, 
as  aforesaid  [or,  set  forth  facts  showing  that  the  suit  has 
been  commenced  within  the  statutory  time], 

9.  That  plaintiff  has  paid,  as  necessary  expenses  for  veri- 
fying said  claim  of  lien,  the  sum  of  fifty  cents,  and  for  filing 
and  recording  the  same  the  sum  of  three  dollars. 

10.  That  the  sum  of  one  hundred  and  fifty  dollars  is  a 
reasonable  attorney's  fee  to  be  allowed  to  plaintiff  in  this 
action  in  the  superior  court.  [Where  attorneys'  fees  are  not 
allowed,  the  allegation  should,  of  course,  be  omitted.] 


838  mechanics'  liens. 

11.  That  the  defendants  0  P,  R  S,  and  T  U  have,  or  claim 
to  have,  some  interest  in  or  lien  upon  said  premises,  but 
that  all  such  claims  or  liens  are  subject  and  subsequent  to 
the  lien  of  plaintiff,  as  aforesaid. 

Wherefore,  plaintiff  prays: 

1.  For  judgment  against  said  defendant  G  H  for  said 
sum  of  nine  hundred  dollars,  in  gold  coin  of  the  United 
States,  and  interest  thereon  from  the  tenth  day  of  May, 
1898,  at  the  rate  of  seven  per  centum  per  annum,  and  costs 
of  this  suit. 

2.  That  the  court  decree  that  the  plaintiff  has  a  lien  upon 
said  building,  and  upon  all  the  land  herein  described,  for 
said  sum  of  nine  hundred  dollars,  in  gold  coin  of  the  United 
States,  with  interest  thereon  from  the  tenth  day  of  May, 
1898,  at  the  rate  of  seven  per  centum  per  annum,  together 
with  plaintiff's  costs  of  suit  [where  attorneys'  fees  are  al- 
lowed, add :  "  including  one  hundred  and  fifty  dollars  as 
reasonable  attorneys'  fees,"  or  the  statutory  limit],  and 
three  dollars  and  tifty  cents,  the  expense  of  verifying  and 
recording  said  claim  of  lien. 

3.  That  all  said  real  property  and  the  building  thereon 
be  sold  under  the  order  and  decree  of  this  court,  according 
to  law,  and  the  proceeds  thereof  applied  to  the  payment  of 
the  sum  found  due  to  plaintiff,  as  aforesaid,  including  the 
costs,  expenses  [and  attorneys'  fees]  aforesaid,  and  that 
plaintiff  may  have  execution  against  said  defendant  G  H 
for  any  deficiency  which  may  arise  after  the  said  application 
of  said  proceeds. 

4.  That  the  interests,  estates,  or  claims  of  all  the  defend- 
ants, and  each  of  them,  in,  to,  or  upon  all  said  building  and 
real  property,  and  every  part  thereof,  be  adjudged  to  be 
subsequent  and  subject  to  the  plaintiff's  lien,  as  aforesaid; 
and  that  the  equity  of  redemption  of  each  and  every  of  said 
defendants  in  and  to  said  premises,  and  every  part  thereof, 
be  forever  barred  and  foreclosed. 

5.  That  plaintiff,  or  any  other  party  to  this  action,  may 
become  purchaser  at  said  sale. 

6.  That  plaintiff  may  have  such  other,  further,  or  different 
relief  as  may  be  proper  and  equitable  in  the  premises. 

[Verification.]  ,  Attorney  for  Plaintiff. 


FORMS. 


839 


Form  No.  33.     Complaint  for  Foreclosure  of  Ori^nal  Con- 
tractor's Lien,  under  Statutory  Original  Contract.'"' 
[Title  of  court  and  cause.] 
Plaintiff  complains  of  defendants,  and  for  cause  of  action 
alleges : 

1.  [Same  as  paragraph  1,  Form  No.  18.] 

2.  That  on  the  first  day  of  March,  1898,  plaintiff  and  the 
defendant  G  H  entered  into  an  agreement,  in  Avriting,  sub- 
scribed by  plaintiff  and  said  defendant,  whereby  the  plain- 
tiff agreed  to  furnish  the  material  and  construct  for  the 
said  defendant  G  H  a  certain  three-story  brick  building 
upon  the  lands  hereinafter  described,  and  that  the  said  de- 
fendant agreed  to  pay  plaintiff  therefor  the  sum  of  ten 
thousand  dollars,  in  gold  coin  of  the  United  States,  in  in- 
stalments, at  specified  times,  after  the  commencement  of  the 
work  [stating  them;  or,  "  on  completion  of  specified  portions 
of  the  work,"  or,  "  on  the  completion  of  the  whole  work," 
as  the  case  may  be],  and  that,  under  said  contract,  twenty- 
five  per  cent  of  the  whole  contract  price  was  made  payable 
thirty-five  days  after  the  final  completion  of  said  contract, 
a  copy  of  which  is  hereto  annexed,  marked  "  Exhibit  I,"  and 
made  a  part  hereof. 

3.  That  before  work  under  said  contract  was  commenced, 
said  contract  [or,  if  a  memorandum  was  filed,  state,  "  a 
memorandum  of  said  contract,"  setting  forth  the  said  names 
of  all  the  parties  to  said  contract,  a  description  of  tlie  prop- 
erty to  be  affected  thereb3%  together  with  a  statement  of 
the  general  character  of  the  work  to  be  done,  the  total 
amount  to  be  paid  thereunder,  and  the  amounts  of  all  partial 
payments,  together  with  the  times  when  such  payments  were 
to  be  due  and  payable]  was  filed  in  the  office  of  the  county 
recorder  of  said  city  and  county,  where  said  property  is 
situated. 

[Insert  other  allegations,  as  in  Form  No.  32,  paragraphs 
3  to  11,  inclusive,  including  prayer  and  verification.] 

^  This  form  may  be  adapted  for  use  in  Colorado.  See  preceding 
form. 

Text.  See  "Complaint,"  §§670  et  seq.,  ante;  "Statutory  Original 
Contracts,"  §§  269  et  seq.,  ante. 


840  mechanics'  liens. 

Form  No.  34.     Complaint  of  Lien-holder  for   Grading  or 

Improving  Lot  in  Incorporated  City.^^ 

[Kerr's  Cyc.  Code  Civ.  Proc,  §  1191.] 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  alleges : 

1.  That  at  all  the  times  herein  mentioned  defendant  G  H 
was  and  now  is  the  owner  of  the  real  property  situate  in  the 
city  and  county  of  San  Francisco,  state  of  California,  and 
more  particularly  described  as  follows,  to  wit  [description] . 

2.  That  the  city  and  county  of  San  Francisco,  herein  men- 
tioned, is  an  incorporated  city  under  the  laws  of  the  state  of 
California. 

3.  That  heretofore,  to  wit,  on  the  second  day  of  January, 
1899,  at  said  city  and  county  of  San  Francisco,  state  of  Cali- 
fornia, plaintiff  entered  into  a  contract,  in  writing,  with  the 
defendant  to  grade  the  said  lot  [here  give  terms  of  contract, 
and  describe  the  work,  so  as  to  bring  it  within  the  provisions 
of  section  eleven  hundred  and  ninety-one  of  the  Code  of  Civil 
Procedure]. 

4.  That,  under  said  contract,  said  defendant  agreed  to 
pay  plaintiff  one  thousand  dollars,  in  United  States  gold  coin, 
for  said  grading. 

5.  That  plaintiff  fully  performed  and  completed  said 
grading  in  accordance  with  the  terms  of  said  contract,  on  the 
twentieth  day  of  January,  1899. 

6.  That  plaintiff  demanded  of  said  defendant  said  sum  of 
one  thousand  dollars,  but  that  said  defendant  has  not  paid 
the  same,  nor  any  part  thereof. 

7.  That,  within  sixty  days  after  the  completion  of  said 
contract,  to  wit,  on  the  thirtieth  day  of  January,  1899, 
plaintiff  filed  for  record  with  the  county  recorder  of  said 
city  and  county,  his  claim  of  lien  [continue  as  in  paragraphs 
8-11,  Form  No.  32] . 

[Prayer  as  in  Form  No.  32.] 

[Verification.]  ,  Attorney  for  Plaintiff. 

"  Text.     See  "Nature  of  Labor,"   §§139  et  seq.,  ante. 
This  form  may  be  adapted  for  use  in  Alaska,  Idalio,  Montana,  Ne- 
vada, New  Mexico,  Oregon,  and   Washington. 


FORMS.  841 

Form  No.  35.     Complaint  for  Foreclosure  of  Subclaimant's 

Lien." 
[Title  of  court  and  cause.] 
Plaintiff  complains  of  defendants,  and  for  cause  of  action 
alleges : 

1.  [Same  as  paragraph  1,  Form  No.  32.] 

2.  That  on  or  about  the  first  day  of  March,  1898,  the  de- 
fendant A  B  and  defendant  G  H  entered  into  a  contract  in 
writing.  [Set  out  contract  as  in  Form  No.  32,  paragraph  2, 
if  the  contract  is  non-statutor3^  If  the  agreed  contract  price 
was  more  than  one  thousand  dollars,  and  the  contract  was 
valid,  follow  paragraph  2,  Form  No.  33.  If  the  original 
statutory  contract  was  void,  also  set  forth  the  fact  showing 
its  invalidity.] 

3.  That  said  defendant  A  B  completed  said  building,  under 
the  terms  of  said  original  contract,  on  the  tenth  day  of  May, 
1898  [continue  as  in  paragraph  3,  Form  No.  32]. 

4.  That  said  defendant  owner,  G  H,  has  paid  the  said  de- 
fendant contractor  the  sum  of  six  hundred  dollars,  under 
said  contract,  and  that  the  sum  of  four  hundred  dollars  still 
remains  due  and  unpaid,  under  the  terms  thereof.  [If  facts 
showing  the  invalidity  of  the  original  contract  have  been 
pleaded,  this  allegation  is  unnecessary.] 

5.  That  on  or  about  the  tenth  day  of  March,  1898,  plaintiff 
sold,  delivered,  and  furnished  to  said  original  contractor, 
defendant  A  B,  twenty  thousand  feet  of  one-by-four  flooring, 
of  the  agreed  value  of  four  hundred  dollars,  for  and  to  be 
used  in  the  construction  of  said  building,  and  that  all  of 
said  flooring  was  actually  used  in  the  construction  thereof 
[or,  in  the  case  of  a  subcontractor,  set  forth  the  terms  of  the 
subcontract,  and  allege  performance]. 

6.  [If  a  notice  has  been  served  on  the  owner  under  the 
provisions  of  section  eleven  hundred  and  eighty-four  of  the 
Code  of  Civil  Procedure,  allege  facts  showing  such  service, 
and  the  amount  then  due  from  the  owner  to  the  contractor, 
and  the  amount  thereafter  due.  If  facts  showing  the  in- 
validity of  the  original  contract  have  been  pleaded,  these 
allegations  are  unnecessary.] 

s-  Text.     Subclaimants:  See  §§43,  66  et  seq..  ante. 


842  mechanics'  liens. 

7.  That  plaintiff  demanded  said  sum  of  four  hundred  dol- 
lars from  said  defendants  A  B  and  G  H,  but  that  they  have, 
and  each  of  them  has,  neglected  to  pay  the  same,  or  any  part 
thereof. 

8.  [Insert  paragraph  5,  Form  No.  32.] 

9.  [Insert  paragraph  6,  Form  No.  32.] 

10.  [Allege  facts  showing  that  the  claim  of  lien  was  filed 
within  the  statutory  time.    See  paragraph  8,  Form  No.  32.] 

11.  [Insert  paragraphs  9,  10,  11,  Form  No.  32.] 
Wherefore  plaintiff  prays  judgment  as  follows : 

1.  For  personal  judgment  against  said  defendant  A  B 
[i.  e.,  party  personally  liable]  for  said  sum  of  four  hundred 
dollars   [continue  prayer,  as  in  Form  No.  32]. 

[.Verification.]  ,  Attorney  for  Plaintiff. 


Form  No.  36.     Order  of  Reference. 

[Title  of  cause.] 

This  cause  being  at  issue  on  the  complaint  of  the  plaintiff, 
and  the  answers  of  the  defendants  herein,  on  motion  of  X  Y, 
Esq.,  of  counsel  for  said  plaintiff,  and  by  agreement  of  all 
the  parties  hereto  filed  with  the  clerk  [or,  "  and  it  appearing 
to  the  court  that  the  taking  of  an  account  is  necessary  for 
the  information  of  the  court,"  or  as  the  case  may  be  (Kerr's 
Cyc.  Code  Civ.  Proc,  §§  638,  639)],— 

It  is  ordered,  That  this  action  be  referred  to  V  W,  Esq., 
an  attorney  and  counselor  of  this  court,  who  resides  in  said 
city  and  county,  and  against  whom  there  is  no  legal  objec- 
tion, as  referee  to  take  the  proofs  of  the  respective  parties 
hereto,  and  report  the  same  to  the  court ;  that  he  also  report, 
for  the  consideration  of  this  court,  a  decree  founded  on  the 
testimony  so  taken  before  him,  showing  the  amount,  if  any, 
due  to  the  plaintiff  from  the  defendant  G  H,  and  also  the 
amounts  due  to  the  other  defendants,  respectively,  on  the 
various  claims  set  up  by  them  in  their  respective  answers  in 
this  action,  the  time  when  their  respective  demands  become 
liens  on  the  real  estate  and  premises  described  in  plaintiffs' 
complaint ;  and  the  order  of  rank  or  priority  to  which  they 
are  respectively  entitled  in  the  payment  of  said  respective 


FC  RMS.  843 

claims;  also,  showing  Avhat  space  of  the  real  estate  or  land 
of  defendant  E  F,  around  the  building  in  said  complaint 
mentioned,  is  required  for  the  convenient  use  and  occupation 
thereof;  and  that  he  report  to  this  court  with  all  convenient 
speed. 

Dated  this day  of ,  1899. 

(Signed)  ,  Judge  of  Superior  Court. 

Form  No.  37.     Notice  by  Contractor  that  He  Intends  to  Dis- 
pute Account. 

[Arizona  Eev.  Stats.  1901,  §  2900;  Wyoming  Rev.  Stats.,  §  2877  (mines).] 
To (owner  of  the  premises  hereinafter  described). 

You  will  please  take  notice,  That  the  undersigned  con- 
tractor intends  to  dispute  the  claim  and  account  heretofore 

served  upon  you  by  for  the  sum  of  dollars  for 

["materials,"  or,  insert' nature  of  claim],  alleged  to  have 
been  furnished  for  or  done  upon  the  property  hereinafter 
described.  The  following  is  a  description  of  the  premises 
referred  to  :  [insert  description] .  

Dated 

Form  No.  38.  Findings  and  Decision.'-''  Foreclosure  of  lien 
of  owner's  material-men,  partners,  on  two  houses,  prop- 
erty sold  during  construction. 

[Title  of  court  and  cause.] 
This  cause  having  been  regularly  called  for  trial  before 
the  court  (a  jury  trial  having  been  expressly  waived  by 
stipulation  of  the  respective  parties  made  in  open  court  and 
entered  in  the  minutes),  R  S  appearing  as  attorney  for  plain- 
tiffs, and  T  U  appearing  as  attorney. for  defendant  J  L  G. 
And  the  court  having  heard  the  proofs  of  the  respective 
parties  and  considered  the  same,  and  the  records  and  papers 
in  the  cause,  and  the  arguments  of  the  respective  attornej's 
thereon,  and  the  cause  having  been  submitted  to  the  court 
for  its  decision,  the  court  now  finds  the  following  facts: 

=^  Text.     See  "Findings,"  S§  885  et  seq.,  ante. 

Arixuna.  Form,  finding's  of  fact  and  conclusions  of  law,  in  sub- 
stance; suit  to  foreclose  miner's  lien:  See  Griffin  v.  Hurley,  7  Ariz.  399, 
65   Pac.   Rep.    147. 


844  mechanics'  liens. 

Findings  of  Fact.^* 

1.  That  the  plaintiffs,  J  H  and  A  M,  at  all  the  times  herein 
mentioned,  were,  and  now  are,  copartners,  doing  business 
at  said  city  and  county,  under  the  firm  name  and  style  of 
H  &  M. 

2.  That  at  all  the  times  said  plaintiffs  and  L  L  entered 
into  the  contracts  hereinafter  mentioned,  and  at  all  the  times 
plaintiffs  commenced  to  furnish,  and  did  furnish,  the  lumber 
and  materials,  as  hereinafter  stated,  one  L  L  was  the  owner 
and  reputed  owner  of  those  certain  lots,  pieces,  or  parcels 
of  land  situate,  lying,  and  being  in  said  city  and  county  of 
San  Francisco,  state  of  California,  and  more  particularly 

bounded  and  described  as  follows,  to  wit : [here  insert 

description] . 

3.  That  on  December  7,  1906,  said  L  L  divided  said  lands 
into  two  equal  parcels,  and  commenced  the  erection  of  a 
certain  building  or  structure,  and  did  erect  a  certain  building 
or  structure,  upon  each  of  said  parcels,  and  the  following 
is  a  description  of  said  parcels  of  land,  owned,  as  aforesaid, 
by  said  L  L,  including  the  land,  and  the  same  is  the  land, 
required  for  the  convenient  use  and  occupation  of  said  re- 
spective buildings  or  structures : [insert  description  of 

each  parcel  separately] . 

4.  That,  at  the  time  of  the  commencement  of  this  action, 
said  defendant  J  L  G  was  the  owner  of  said  lots  and  pieces 
of  land  and  the  improvements  thereon;  and  that  on  the 
twentieth  day  of  March,  1907,  the  said  L  L  conveyed  said 
pieces  and  parcels  of  land  and  the  improvements  thereon 
to  said  defendant  J  L  G,  and  said  defendant  ever  since  has 
been  and  now  is  the  owner  thereof. 

5.  That  on  the  seventh  day  of  December,  1906,  the  plain- 
tiffs, J  H  and  A  M  (copartners  doing  business  under  the  firm 
name  and  style  of  H  &  M),  and  said  L  L,  entered  into  a 
contract,  whereby  said  L  L  bought  from  said  copartners, 
H  &  M,  and  said  copartners,  H  &  M,  then  furnished  and  de- 
livered to  said  L  L  sixty-six  thousand  seven  hundred  and 
fifty  shingles,  and  it  was  then  and  there  agreed  that  as  many 
of  said  shingles  as  would  be  necessary'-  were  to  be  furnished 

"  Text.     See  "  Questions  of  Law  and  Fact,"  §§  827,  828,  ante. 


FORMS.  845 

for  use  in  the  construction  of,  and  were  to  be  used  in  about 
equal  quantities  on,  each  of  the  two  buildings  or  structures 
hereinbefore  described,  and  of  said  sixty-six  thousand  seven 
hundred  and  fifty  shingles,  thirty-eight  thousand  and  fifty- 
four  shingles,  or  nineteen  thousand  and  tAventy-seven  on 
each  of  said  buildings  or  structures,  were  actually  used  in, 
and  were  necessary  for  the  construction  of,  said  buildings 
or  structures;  and  that  the  reasonable  value  of  said  shingles, 
per  thousand,  is,  and  was  at  said  time,  the  sum  of  one  dollar 
and  sixty  cents;  that  is  to  say,  that  said  shingles,  of  the 
reasonable  value  of  thirty  dollars  and  forty-four  cents,  were 
used  on  each  of  said  buildings  or  structures,  as  aforesaid,  or 
of  the  total  reasonable  value  of  sixty  dollars  and  eightj^- 
eight  cents  on  the  whole  of  the  premises  above  described ; 
and  said  L  L  agreed  to  pay  for  said  shingles  sixty  days  after 
the  said  delivery  thereof;  and  that  the  time  of  pa^-ment 
thereof  had  passed. 

6.  That  plaintiffs  fully  and  duly  performed  all  the  con- 
ditions on  their  part  in  the  said  contract,  but  that  said  L  L 
has  not  paid  said  sum,  nor  any  part  thereof,  and  that  the 
whole  thereof,  to  wit,  said  sum  of  sixty  dollars  and  eighty- 
eight  cents,  is  now  due  and  owing,  and  since  the  sale  thereof 
has  been  due  and  owing,  from  said  L  L,  over  and  above  all 
just  credits  and  offsets ;  and  that  no  part  of  said  sum,  or  of 
any  moneys  to  be  paid  to  plaintiffs  under  said  contract,  has 
been  paid. 

7.  That  on  December  28,  1893,  the  plaintiffs,  J  L  and  A  :\I 
(copartners,  doing  business  under  the  firm  name  and  style 
of  II  &  M),  and  said  L  L,  entered  into  a  contract,  whereby 
said  L  L  bought  from  said  copartners,  11  &  M,  and  said 
H  &  M  then  sold,  furnished,  and  delivered  to  said  L  L, 
twenty  thousand  feet  of  one-by-four  flooring,  and  it  was 
agreed,  at  the  time  of  making  said  contract,  that  as  much 
of  said  twenty  thousand  feet  of  said  flooring  as  Avould  be 
necessary  in  the  construction  of  said  buildings  was  to  be 
furnished  and  used  in  said  buildings  or  structures  above 
described;  and  said  L  L  agreed  to  pay  plaintiffs  for  the  same 
at  the  end  of  sixty  days  after  said  delivery;  that  of  said 
twenty   thousand   feet   of  flooring,   thirteen   thousand   five 


846 


MECHANICS'    LIENS. 


hundred  feet,  or  six  thousand  seven  hundred  and  fifty  feet 
on  each  of  said  buiklings,  were  actually  used  in  the  con- 
struction thereof,  and  were  necessary  for  the  construction 
thereof,  and  that  the  reasonable  value  of  said  flooring  per 
thousand  feet,  at  said  time,  was  the  sum  of  twenty  dollars ; 
that  is  to  say,  that  flooring,  as  aforesaid,  of  the  reasonable 
value  of  one  hundred  and  thirty-five  dollars  was  used  on  each 
of  said  buildings  or  structures,  as  aforesaid,  or  of  the  total 
reasonable  value  of  two  hundred  and  seventy  dollars  on  the 
whole  of  the  premises  above  described;  and  that  the  time 
for  the  payment  of  said  sum  has  passed. 

8.  That  plaintiffs  fully  and  duly  performed  all  the  condi- 
tions on  their  part  on  the  said  contract;  but  that  the  said 
L  L  has  not  paid  said  sum,  nor  any  of  said  sums,  nor  any 
part  thereof,  and  that  the  whole  thereof,  to  wit,  the  sum 
of  two  hundred  and  seventy  dollars,  is  now  due  and  owing 
from  said  L  L,  over  and  above  all  just  credits  and  offsets, 
and  that  no  part  of  said  sums,  nor  any  moneys  to  be  paid  to 
plaintiffs  under  said  contract,  has  been  paid. 

I  Here  insert  other  findings,  similar  to  4  to  8,  for  other 
material  sold  and  delivered.] 

9.  That  all  the  lumber  and  shingles  herein  stated  to  have 
been  sold  and  delivered  by  plaintiffs  to  said  L  L  were  de- 
livered to  said  L  L  on  the  dates  on  which  the  same  are  herein 
respectively  stated  to  have  been  sold  to  said  L  L. 

10.  That  no  part  of  the  interest  on  any  of  the  moneys 
herein  mentioned  has  been  paid. 

11.  That  said  buildings  and  structures  were,  and  each  of 
them  was,  completed  and  finished  by  said  L  L  on  the 
thirtieth  day  of  April,  1907. 

12.  That  thereafter,  and  within  thirty  days  next  after 
the  completion  of  said  buildings  and  structures,  and  each  of 
them,  to  wit,  on  the  twenty-eighth  day  of  May,  1907,  the 
plaintiffs,  J  H  and  A  M,  as  copartners,  doing  business  as 
aforesaid  under  the  firm  name  and  style  of  H  &  M,  filed  for 
record  and  recorded  with  the  county  recorder  of  the  city 
and  county  of  San  Francisco,  state  of  California,  that  being 
the  county  wherein  said  land  was  situated,  as  aforesaid,  their 
claim  and  notice  of  lien  in  writing,  containing  a  statement 


FORMS.  847 

of  their  demand,  and  the  amount  due  them  on  each  of  said 
buildings,  as  hereinbefore  set  forth,  for  materials  furnished 
for  and  actually  used  in  the  construction  of  each  of  said 
buildings,  at  the  instance  of  said  L  L,  as  aforesaid,  after  de- 
ducting all  just  credits  and  offsets,  and  containing  in  said 
claim  of  lien  the  name  of  the  owner  and  reputed  owner  of 
said  premises  at  the  time  of  furnishing  and  use  of  said 
materials,  as  aforesaid,  to  wit,  L  L,  who  was  then  the  owner 
and  reputed  owner  of  said  premises ;  and  containing  also  the 
name  of  the  reputed  owner  at  the  time  of  filing  said  lien  for 
record,  as  aforesaid,  to  wit,  J  L  Gr,  the  defendant,  and  that 
said  J  L  G  was  then  the  reputed  owner  of  said  premises ;  and 
containing  also  the  name  of  the  person  to  whom  said  mate- 
rials were  furnished,  to  wit,  L  L ;  and  that  said  claim  of  lien 
also  contained  a  statement  of  the  terms,  time  given,  and 
conditions  of  each  of  said  contracts,  and  they  were  the  same 
as  hereinbefore  set  forth ;  and  that  said  claim  of  lien  also  con- 
tained a  description  of  the  property  to  be  charged  with  said 
lien,  sufficient  for  identification,  and  that  said  description  was 
the  same  as  the  description  first  herein  set  forth ;  and  that 
said  claim  of  lien  was  verified  on  behalf  of  said  firm,  at  said 
city  and  county,  by  the  oath  of  said  A  M,  one  of  said  plain- 
tiffs, and  was  subscribed  and  sworn  to  before  M  B,  a  notary 
public  in  and  for  said  city  and  county  of  San  Francisco,  who 
then  certified  to  said  oath,  under  his  hand  and  seal  of  office ; 
and  that  said  oath  was  attached  to  said  claim  of  lien  and 
filed  and  recorded  therewith ;  and  thereafter  said  claim  of 
lien  and  oath  were  recorded  by  the  county  recorder  of  said 
city  and  county,  in  the  office  of  said  recorder,  in  a  book  kept 
by  him  for  that  purpose,  in  liber  58  of  liens,  at  page  62 ;  and 
that  ninety  days  had  not  elapsed  since  said  claim  of  lien  was 
filed  for  record,  as  aforesaid,  before  the  commencement  of 
this  action  ;  and  that  said  claim  of  lien  was  duly  recorded  and 
was  in  due  form  as  required  by  law. 

13.  That  plaintiffs  have  paid  as  necessary  expenses  for 
verifying  said  claim  of  lien  the  sum  of  fift.y  cents,  and  for 
filing  and  recording  the  same  the  sum  of  five  dollars  and 
fifty  cents,  or  a  total  of  six  dollars. 


848 


MECHANICS     LIENS. 


14.  [Wliere  attorneys'  fees  are  properly  allowable  under 
the  statute,  insert:]  That  the  sum  of  one  hundred  dollars  is 
a  reasonable  attorne.y's  fee  to  be  allowed  to  plaintiffs  in  this 
action  for  legal  services  in  the  superior  court;  and  that  no 
part  of  any  of  said  sums  has  been  paid. 

15.  That  the  claim  or  interest  of  defendant  J  L  Gr  in  or  to 
said  premises,  and  every  part  thereof,  is  subject  to  and  subse- 
quent to  the  lien  and  claim  of  plaintiffs,  as  aforesaid. 

16.  That  the  allegations  in  paragraphs  1,  3,  4,  5,  8,  9,  10, 
and  12  of  the  first  count,  second  count,  third  count,  fourth 
count,  and  fifth  count  of  plaintiffs'  second  amended  com- 
plaint, as  amended,  are  true. 

17.  That  a  notice  of  the  pendency  of  this  action  was  duly 
filed  in  the  office  of  the  recorder  of  said  city  and  county  on 

the   day   of  [date   of   commencement   of   this 

action]. 

Conclusions  of  Law.^" 
And  as  conclusions  of  law,  from  the  foregoing  facts,  the 
court  now  hereby  finds  and  decides : 

1.  That  there  is  due  and  owing  to  plaintiffs,  as  such  co- 
partners, from  said  L  L,  the  reasonable  value  of  said  lumber 
and  materials  sold  and  delivered  to  him,  as  aforesaid. 

2.  That  plaintiffs,  J  II  and  A  M,  as  copartners  under  the 
firm  name  and  style  of  H  &  M,  have  a  lien  upon  said  build- 
ings or  structures,  and  the  respective  pieces  of  land  upon 
which  they  and  each  of  them  are  situate,  as  aforesaid,  for 
the  sums  found  due  upon  them  as  aforesaid,  to  wit,  for  the 
sum  of  sixty  dollars  and  eighty-eight  cents  on  the  first  count 
of  said  second  amended  complaint,  as  amended,  on  the  first 
contract  herein  set  forth;  and  for  the  further  sum  of  two 
hundred  and  seventy  dollars  on  the  second  count  or  cause 
of  action  set  forth  in  said  second  amended  complaint,  as 
amended,  upon  the  second  contract  set  forth  herein ;  and  the 
further  sum  of  two  hundred  and  fifty  dollars  on  the  third 
count  or  cause  of  action  set  forth  in  said  second  amended 
complaint,  as  amended,  upon  the  third  contract  set  forth 
herein;  and  the  further  sum  of  ninety-six  dollars  and  fifty- 

»  Text.     See  "  Questions"  of  Law  and  Fact,"  §§  827,  82S,  ante. 


FORMS.  849 

five  cents  on  the  fourth  count  or  cause  of  action  set  forth 
in  the  said  second  amended  complaint,  as  amended,  upon 
the  fourth  contract  hereinbefore  set  forth ;  and  the  further 
sum  of  one  hundred  and  sixty-two  dollars  and  forty-seven 
cents  upon  the  fifth  count  or  cause  of  action  set  forth  in 
said  amended  complaint,  as  amended,  upon  the  contract 
lastly  hereinbefore  set  forth ;  or  a  lien  for  the  total  sum  of 
eight  hundred  and  thirty-nine  dollars  and  ninety  cents, 
together  with  interest  thereon  from  the  first  day  of  :\lay, 
1906,  at  the  rate  of  seven  per  centum  per  annum,  together 
with  the  costs  and  expenses  of  verifying,  filing,  and  record- 
ing said  claim  of  lien,  as  aforesaid,  to  wit,  the  sum  of  six 
dollars  [and  together  with  the  further  sum  of  one  hundred 
dollars  as  reasonable  attorneys'  fees],  and  together  with 
plaintiffs'  costs  of  suit. 

3.  That  plaintiffs,  as  such  copartners,  are  entitled  to  a 
decree  establishing  their  lien  for  each  and  all  of  said  sums 
upon  said  parcels  of  land  and  the  respective  buildings 
thereon;  and  also  decreeing  that  the  whole  of  each  of  said 
respective  parcels  of  land  is  required  for  the  convenient  use 
and  occupation  of  the  respective  buildings  thereon;  and 
further  decreeing  that  all  and  singular  the  premises  men- 
tioned herein,  or  so  much  thereof  as  may  be  sufficient  to 
raise  the  amount  due  to  plaintiff,  which  is  herein  found  to 
be  a  lien  upon  said  premises,  for  principal  and  interest  [at- 
torneys' fees] ,  expenses,  costs  of  suit,  and  the  expense  of  sale, 
and  which  may  be  sold  separately  without  material  injury 
to  the  parties  interested,  be  sold  at  public  auction,  by  the 
sheriff  of  said  city  and  county;  that  the  said  sheriff  give 
public  notice  of  the  time  and  place  of  such  sale,  according 
to  the  course  and  practice  of  the  court  and  the  law  relative 
to  sales  of  real  estate  under  execution;  and  that  the  plain- 
tiff, or  any  of  the  parties  to  this  suit,  may  become  the 
purchaser  at  such  sale;  and  that  the  said  sheriff,  after  the 
time  allowed  by  law  for  redemption,  execute  a  deed  to  the 
purchaser  or  purchasers  of  said  premises  on  said  sale;  and 
further  decreeing  that  said  sheriff,  out  of  the  proceeds  of 
said  sale,  retain  his  fees,  disbursements,  and  commissions  on 
said  sale,  njid  pay  to  the  plaintiffs,  or  their  attorney,  out  of 

Mecli.   Liens  —  54 


850  mechanics'  liens. 

said  proceeds,  his  costs  in  this  suit,  and  the  moneys  found  to 
be  a  lien  upon  said  premises  hereinabove  set  forth,  with 
interest  thereon  from  the  date  of  said  decree,  at  the  rate 
of  seven  per  centum  per  annum,  or  so  much  thereof  as  said 
proceeds  of  sale  will  pay  of  the  same ;  and  further  decreeing 
that  the  defendant,  and  all  persons  claiming  or  to  claim  from 
or  under  him,  and  all  persons  having  or  claiming  to  have 
acquired  any  estate  or  interest  in  said  premises  subsequent 
to  the  filing  of  said  notice  of  the  pendency  of  this  action  with 
said  recorder,  and  subsequent  to  the  commencement  of  this 
suit,  be  forever  barred  and  foreclosed  of  and  from  all  equity 
of  redemption  and  claim  in,  of,  and  to  said  premises,  and 
every  part  and  parcel  thereof,  from  and  after  the  delivery 
of  said  sheriff's  deed;  and  further  decreeing  that  the  pur- 
chaser or  purchasers  of  said  premises  at  such  sale  be  let  into 
possession  thereof;  and  that  any  of  the  parties  to  this  action 
who  may  be  in  possession  of  said  premises,  or  any  part 
thereof,  and  any  person  who,  since  the  commencement  of  this 
action,  has  come  into  possession  under  them,  or  either  of 
them,  deliver  possession  thereof  to  such  purchaser  or  pur- 
chasers, on  production  of  the  sheriff's  deed  for  such  premises 
or  any  part  thereof. 

And  judgment  is  hereby  ordered  to  be  entered  accord- 
ingly. 

Dated  this day  of  April.  1907. 

(Signed)  ,  Judge  of  Superior  Court. 

Form  No.  39.    Decree.^*'   Foreclosing  Lien  of  Material-men, 
Copartners,  on  Two  Buildings,  Property  Sold  during  Con- 

struction. 

[Title  of  court  and  cause.] 

This  cause  coming  on  regularly  for  trial  on  the  eleventh, 
twelfth,  and  thirteenth  days  of  February,  A.  D.  1907,  R  S 
appearing  as  counsel  for  plaintiffs,  and  T  U  appearing  as 
counsel  for  defendant  J  L  G,  said  cause  having  been  duly 
dismissed  as  to  all  the  defendants  except  said  defendant 

=<  Text.     See   "  Decree,".  §§  903   et  seq..   ante. 

Colorado.  Form,  mandatory  part  of  decree  foreclosing  lien:  See 
Marean  v.  Stanley,   34   Colo.   91,   -il   Pac.   Kep.    759. 


1 


FORMS.  851 

J  L  G,  a  trial  bj-  jury  having  been  duly  and  expressly  waived 
by  counsel  for  the  respective  parties;  and  it  appearing  that 
notice  of  the  pendency  of  this  action  was  duly  filed  in  the 
office  of  the  recorder  of  said  city  and  county,  and  the  court 
having  heard  the  testimony  and  proofs,  and  the  evidence 
being  closed,  and  the  court  having  heard  the  argument  of 
counsel,  the  cause  was  submitted  to  the  court  for  considera- 
tion and  decision;  and  after  due  deliberation  thereon,  the 
court  delivers  its  decision  and  findings  in  writing,  which  is 
filed  herein,  and  orders  that  judgment  be  entered  in  accord- 
ance therewith. 

Wherefore,  By  reason  of  the  law  and  the  findings  afore- 
said, and  upon  motion  of  R  S.  attorney  for  plaintiffs.  — 

It  is  ordered,  adjudged,  and  decreed,  That  there  is  due 
and  owing  to  plaintiffs,  J  II  and  A  M,  as  copartners,  doing 
business  under  the  firm  name  and  style  of  II  &  M,  from  L  L, 
the  reasonable  value  of  lumber  and  materials  sold  and  de- 
livered to  said  L  L  by  said  plaintiffs,  as  shown  in  said  find- 
ings herein ;  and 

It  is  further  ordered,  adjudged,  and  decreed.  That  said 
plaintiffs,  J  H  and  A  M,  as  copartners,  doing  business  under 
the  firm  name  and  style  of  H  &  M,  have  a  lien  upon  the 
buildings  and  structures,  and  the  respective  pieces  of  land 
upon  which  they  and  each  of  them  are  situate,  and  upon  the 
whole  thereof,  as  in  the  complaint  and  hereinafter  described, 
for  the  sum  of  sixty  dollars  and  eighty-eight  cents  on  the 
first  count  or  cause  of  action  set  forth  in  the  second  amended 
complaint,  as  amended;  and  for  the  further  sum  of  two 
hundred  and  seventy  dollars  on  the  second  count  or  cause 
of  action  set  forth  in  said  second  amended  complaint,  as 
amended ;  and  for  the  further  sum  of  two  hundred  and  fifty 
dollars  on  the  third  count  or  cause  of  action  set  forth  in  said 
second  amended  complaint,  as  amended;  and  for  the  further 
sum  of  ninely-six  dollars  and  fifty-five  cents  on  the  fourth 
count  or  cause  of  action  set  forth  in  said  second  amended 
complaint,  as  amended ;  and  for  the  further  sum  of  one 
hundred  and  sixty-two  dollars  and  forty-.seven  cents  upon 
the  fifth  count  or  cause  of  action  set  forth  in  said  second 
amended  complaint,  as  amended;  and  a  lien  for  each  of  said 


852 


MECHANICS     LIENS. 


amomits  upon  both  and  each  of  said  parcels  of  land,  and 
the  respective  structures  thereon;  and  also  a  lien  for  the 
sum  total  thereof,  to  wit,  the  sum  of  eight  hundred  and 
thirty-nine  dollars  and  ninety  cents  ($839.90),  upon  the 
whole  of  said  premises,  together  with  interest  thereon  ^"  from 
the  first  day  of  May,  A.  D.  1906,  at  the  rate  of  seven  per 
centum  per  annum,  together  with  the  further  sum  of  six  dol- 
lars expenses  of  verifying,  filing,  and  recording  plaintiffs' 
claim  of  lien  herein  [together  with  the  further  sum  of  one 
hundred  dollars,  reasonable  attorneys'  fees  herein]  ,^^  or  the 
sum  total  of  one  thousand  and  sixty-one  dollars  and  thirty- 
four  cents,  together  with  plaintiffs'  costs  of  suit  herein,  all  of 
which  constitute  a  lien  on  said  premises  as  aforesaid. 

And  it  is  further  ordered,  adjudged,  and  decreed,  That  the 
whole  of  each  of  said  respective  parcels  of  land  is  required 
for  the  convenient  use  and  occupation  of  the  respective 
buildings  thereon; 

And  it  is  further  ordered,  adjudged,  and  decreed.  That 
all  and  singular  the  premises  hereinafter  described,  or  so 
much  thereof  as  may  be  sufficient  to  raise  the  amount  due  to 
plaintiffs,  which  is  herein  decreed  to  be  a  lien  upon  said 
premises,  for  principal  and  interest,  attorneys'  fees,  expenses 
and  costs  of  suit,  including  the  expense  of  sale,  and  which 
may  be  sold  separately  without  material  injury  to  the  parties 
interested,  be  sold  at  public  auction  by  the  sheriff  of  said 
city  and  county,  according  to  law;  that  said  sheriff  give 
public  notice  of  the  time  and  place  of  such  sale,  according 
to  the  course  and  practice  of  the  court  and  the  law  relative 
to  sales  on  real  estate  under  execution;  and  that  the  plain- 
tiffs, or  any  of  the  parties  to  this  suit,  may  become  the 
purchasers  at  such  sale ;  and  that  the  said  sheriff,  after  the 
time  allowed  by  law  for  redemption,  execute  a  deed  to  the 
purchaser,  or  purchasers,  of  said  premises  on  said  sale;  and 
that  said  sheriff,  out  of  the  proceeds  of  said  sale,  retain  his 
fees,  disbursements,  and  commissions  on  said  sale,  and  pay 
to  the  plaintiffs,  or  their  attorney,  out  of  said  proceeds,  their 
costs  in  this  suit,  and  the  moneys  found  to  be  a  lien  upon 

"  Text.     See  "  Interest,"  §§  907  et  seq.,  ante. 

•»  Text.     See  "  Attorneys'  Fees,"  §§  935  et  seq.,  ante. 


FORMS.  853 

said  premises,  as  hereinabove  decreed,  with  interest  thereon 
from  this  date,  at  the  rate  of  seven  per  centum  per  annum, 
or  so  much  thereof  as  said  proceeds  of  sale  will  pay  for  the 
same ;  and  that  the  defendant,  and  all  persons  claiming  or  to 
claim  from  or  under  him,  and  all  persons  having  or  claiming 
to  have  acquired  any  estate  or  interest  in  said  premises  subse 
quent  to  the  filing  of  said  notice  of  the  pendency  of  this 
action  with  said  recorder,  and  subsequent  to  the  commence- 
ment of  this  suit,  be  forever  barred  and  foreclosed  of  and 
from  all  equity  of  redemption  and  claim  in,  of,  arid  to  said 
premises,  and  every  part  and  parcel  thereof,  from  and  after 
the  delivery  of  said  sheriff's  deed;  and  that  the  purchaser 
or  purchasers  of  said  premises  at  such  sale  be  let  into  posses- 
sion thereof,  and  that  any  of  the  parties  to  this  action  who 
may  be  in  possession  of  said  premises,  or  any  part  thereof, 
and  any  person  who,  since  the  commencement  of  this  action, 
has  come  into  possession  under  them,  or  either  of  them, 
deliver  possession  thereof  to  such  purchaser  or  purchasers 
on  production  of  the  sheriff's  deed  for  such  premises,  or  any 
part  thereof. 

The  following  is  a  description  and  particular  boundaries 
of  the  property  authorized  to  be  sold  under  and  by  virtue 
of  this  decree :  All  those  certain  lots,  pieces,  and  parcels  of 
land  situate,  lying,  and  being  in  the  said  city  and  county  of 
San  Francisco,  state  of  California,  and  more  particularly  de- 
scribed as  follows,  to  wit: [insert  separate  description 

of  each  parcel] . 

Dated  this  twenty-second  day  of  April,  1907. 

(Signed)  ,  Judge  of  the  Superior  Court. 


Form  No.  40.     Satisfaction  of  Judgment. 

[Title  of  court  and  cause.] 
For  and  in  consideration  of  the  sum  of  one  thousand  two 
hundred  dollars  ($1,200),  gold  coin  of  the  United  States,  to 
me  in  hand  paid  by  J  L  G,  defendant  in  the  above-entitled 
action,  full  satisfaction  is  hereby  acknowledged  of  a  certain 
judgment  rendered  in  said  superior  court,  in  said  action,  on 
the  twenty-second  day  of  April,  1907,  in  favor  of  plaintiffs 


854  mechanics'  liens. 

J  H  and  A  M,  copartners,  doing  business  under  the  firm 
name  of  H  &  M,  and  which  was  adjudged  to  be  a  lien  upon 
the  property  in  the  complaint  in  this  action  described,  for 
the  sum  of  one  thousand  and  sixty  dollars,  and  one  hundred 
and  forty  dollars,  costs  and  disbursements  and  percentage; 
which  said  judgment  was  recorded  in  book  31  of  judgments, 
at  page  236 ;  and  I  hereby  authorize  and  direct  the  clerk  of 
said  court  to  enter  satisfaction  of  record  of  said  judgment 
in  said  action. 

Dated  this  ninth  day  of  May,  1907. 

,  Attorney  for  Plaintiff. 


I 


INDEX  OF  FORMS. 

ACCOUNT. 

notice  by  contractor  that  he  intends  to  dispute,  Form  No.  37. 

ACTION. 

by  owner  against  contractor  and  lien  claimants,  806,  note, 
to  foreclose  lien.    See  tit.  Foreclosure  of  lien. 

AGREEMENT    TO    BUILD    HOUSE    ACCORDING    TO    PLAN 
ANNEXED. 

material  to  be  furnished  by  owner,  short  form,  Form  No.  15. 

ALASKA, 
claim  of  lien. 

by  original  contractor. 

on  structure,  824,  note, 
verification  of,  826,  note, 
for  grading  lot  in  incorporated  city,  833,  note, 
notice  by  owner  to  contractor  to  defend  lien  suits,  834,  note, 
notice  of  non-responsibility  by  owner  of  structure,  819,  note. 

ALTERATIONS. 

in  contract,  clause  for,  in  building  contract,  Form  No.  7. 

APPEAL   BOND. 

from  decree  of  foreclosure,  in  Colorado,  806,  note, 
general,  in  Colorado,  806,  note. 

APPROVAL    OF    WORK. 

clause  in  building  contract  for.  Form  No.  13. 

ARBITRATION. 

clausi'  for,  in  building  contract,  Form  No.  9. 

ARCHITECT. 

certificate  of,  as  to  payments,  clause  for,  in  building  contract,  Form 

No.  4. 
statement   of   contractor   made  to,   as   to   liens,   to   obtain  payment, 

Form  No.  19. 

ARIZONA. 

bond  for  performance  of  original  contract,  conditions  of,  818,  note, 
claim  of  lieu,  original  contractor,  on  structure,  824,  note. 

(855^ 


856  INDEX    OP   FORMS. 

ARIZONA  (continued). 

findings  of  facts  and  conclusions  of  law  on  foreclosure  of  Hen,  843, 

note, 
notice  to  owner  of  furnishing  materials   or  performing  labor,  821, 

note. 

BOND.    See  tit.  Bond  of  contractor, 
appeal.     See  tit.  Appeal  bond, 
for  performance  of  original  contract,  Form  No.  16. 

BOND    OF    CONTRACTOR.     See  tit.  Bond, 
common-law  bond,  818,  note, 
for  performance  of  original  contract,  Form  No.  16. 

BUILDERS'    NON-STATUTORY    ORIGINAL    CONTRACT.     See  tit. 
Building  contract, 
short  form  of,  Form  No.  15. 

BUILDING    CONTRACT. 

clause  for  alterations  in  contract.  Form  No.  7. 
arbitration.  Form  No.  9. 

certificate  of  architect  as  to  payments.  Form  No.  4. 
completion  of  building  by  owner,  upon  default  of  contractor,  Form 

No.  14. 
construction  of  drawings  and  specifications,  Form  No.  6. 
damages  for  delay  by  contractor.  Form  No.  10. 
delay  in  payments  by  owner.  Form  No.  5. 
delays.  Form  No.  3. 

inspection  and  approval  of  work,  Form  No.  13. 
liability  in  case  of  destruction  of  building  before  completion. 

owner  and  contractor  sharing  loss,  Form  No.  11. 

owner  assuming  loss,  Form  No.  12. 
working-drawings.  Form  No.  2. 
written  changes  in  contract,  Form  No.  8. 

BUILDINGS,    CONTIGUOUS. 

claim  of  lien  against  two  or  more,  owned  by  same  person,  general 
form,  Form  No.  28. 

BUILDINGS,    TWO    OR    MORE. 

decree  on  foreclosure  of  lien  of  material-men,  copartners,  on  prop- 
erty sold  during  construction.  Form  No.  39. 

findings  and  decision  on  foreclosure  of  lien  of  material-men,  partners, 
on  property  sold  during  construction.  Form  No.  38. 

CERTIFICATE  OF  ARCHITECT. 

as  to  payments,  clause  for,  in  building  contract.  Form  No.  4. 


INDEX    OP   FORMS.  857 

CESSATION    FROM    WORK. 

notice  by  owner  of,  Form  No.  21. 

CHANGES. 

written,  clause  for,  in  building  contract,  Form  No.  8. 

CITY. 

incorporated.     See  tit.  Incorporated  city. 

CLAIM    OF    LIEN. 

against  two  contiguous  buildings  owned  by  the  same  person,  general 

form,  Form  No.  28. 
contractor's  laborer,  Form  No.  27. 
contractor's  material-man.  Form  No.  27. 
for  grading  lot  in  incorporated  city,  Form  No.  29. 
miner's,  general  form.  Form  No.  26. 
on  structure,  Forms  No.  25,  27. 
original  contractor, 

on  structure,  Form  No.  23. 

verification  of.  Form  JTo.  24. 
owner's  laborer.  Form  No.  25. 
owner's  material-man,  Form  No.  25. 
subclaimant,  of.  Form  No.  27. 
subcontractor  in  the  first  degree,  of,  Form  No.  27. 

CLAUSES. 

in  building  contract.    See  tit.  Building  contract. 

COLORADO. 

appeal  bond  in. 

from  d(H'ree  of  foreclosure,  806,  note. 

general  form,  806,  note. 
claim  of  lien. 

for  materials,  by  material-man's  contractor,  830,  note. 

notice  of  intention  to  file,  836,  note, 
alleging  service  of,  836,  note. 

original  contractor,  on  structure,  824,  note. 

verification  of,  826,  note, 
common-law  bond,  817,  note, 
contract  to  construct  ditch,  807,  note. 

contractor's  bond  making  no  reference  to  code  provision,  817,  note, 
decree,  mandatory  part  of,  foreclosing  lien,  850,  note, 
non-statutory  original  contract,  817,  note. 

notice  of  non-responsibility  by  owner,  in  case  of  structure,  819,  note, 
notice  to  owner  of  furnishing  material  or  performing  labor,  821,  note, 
statutory  original  contract,  807,  note. 


858  INDEX    OF    FORMS. 

COMPLAINT. 

for  foreclosure  of  lien. 

of  lien-holder  for  grading  or  improving  lot  in  incorporated  city, 

Form  No.  34. 
of    original    contractor's   lien,    under    statutory    original    contract, 

Form  No.  33. 
of  subclaimant's  lien,  Form  No.  35. 
original   contractor,   under  non-statutory   original   contract,  Form 

No.  32. 
of  lien-holder   for   grading   or   improving  lot   in   incorporated   city, 

Form  No.  34. 

COMPLETION    OF    BUILDING. 

notice  by  owner  of.  Form  No.  21. 

COMPLETION    OF    BUILDING    BY    OWNER. 

upon  default  of  contractor,  clause  for,  in  building  contract,  Form 
No.  14. 

CONSTRUCTION. 

of  drawings  and  specifications,  clause  for,  in  building  contract.  Form 
No.  6. 

CONTRACT.    See  tit.  Building  contract. 

clause  for  alterations  in,  in  building  contract,  Form  No.  7. 
non-statutory  original,  complaint  for  foreclosure  of  lien  under,  by 

original  contractor.  Form  No.  32. 
statutory  original,  complaint  for  foreclosure  of  original  contractor's 

lien  under.  Form  No.  33. 
to  construct  ditch,  Colorado,  807,  note, 
written  changes  in,  clause  for,  in  building  contract.  Form  No.  8. 

CONTRACTOR.     See  tit.  Original  contractor. 

action  by  owner  against,  and  lien  claimants,  806,  note. 

clause  in  building  contract  by  which  he  shares  loss  with  owner  in 
case  of  destruction  of  building  before  completion,  Form 
No.  11. 

damages  for  delay  by,  clause  for,  in  building  contract,  Form  No.  10. 

default  of,  completion  of  building  by  owner,  clause  for,  in  building 
contract.  Form  No.  14. 

notice  by,  that  he  intends  to  dispute  account.  Form  No.  37. 

statement  of,  made  to  architect  or  owner  as  to  liens,  to  obtain  pay- 
ment. Form  No.  17. 

CONTRACTOR'S   LABORER. 

claim  of  lien  by,  on  structure.  Form  No.  27. 


INDEX    OF   FORMS.  859 

CONTRACTOR'S    MATERIAL-MAN. 

claim  of  lien  by,  on  structure,  Form  Ko.  27. 

DAMAGES. 

for  delay  by  contractor,  clause  for,  in  building  contract,  Form  No.  10. 

DECISION. 

and  findings  on  foreclosure  of  lien.  Form  No.  38. 

DECISIONS,    FINDINGS    AND. 

foreclosure  of  lien  of  owner's  material-men,  partners,  on  two  houses, 
property  sold  during  construction,  Form  No.  38. 

DECREE. 

foreclosing  lien  of  material-men,  copartners,  on  two  buildings,  prop- 
erty sold  during  construction,  Form  No.  39. 

DELAY. 

clause  for,  in  building  contract,  Form  No.  3. 

damages  for,  by  contractor,  clause  for,  in  building  contract.  Form 

No.  10. 
in  payment  by  owner,  clause  in  contract  respecting.  Form  No.  5. 

DELAY    IN    PAYMENTS    BY    OWNER. 

clause  for,  in  building  contract,  Form   No.  5. 

DESTRUCTION    OF    BUILDING. 

before  completion,  clause  in  building  contract  respecting, 
owner  and  contractor  sharing  loss.  Form  No.  11. 
owner  assuming  loss,  Form  No.  12. 

DITCH. 

contract   to   construct,   Colorado,   807,   note. 

DRAWINGS    AND    SPECIFICATIONS. 

construction  of,  clause  for,  in  building  contract,  Form  No.  6. 

FINDINGS    AND    DECISION.    See  tit.  Decision. 

foreclosure  of  lien  of  owner's  material-nieii,  partners,  on  two  houses, 
property  sold  during  construction,  Form  No.  38. 

FIRST    DEGREE. 

subcontractor  in.     See  tit.  Subcontractor. 

FORECLOSURE    OF    LIEN. 

complaint  for,  by  original  contractor. 

under  non  statutory  original  contract,  Form  No.  32. 
under  statutory  original  contract,  Form  No.  33. 


860  INDEX   OF   FORMS. 

FORECLOSURE  OF  LIEN  (continued). 

of  material-men,  copartners,  on  two  buildings,  property  sold  during 

construction,  decree,  Form  No.  39. 
of  subclaimant,  complaint  for,  Form  No.  35. 

GRADING.    See  tit.  Improvement. 

claim  of  lien  for,  on  lot  in  incorporated  city,  Form  No.  29. 
complaint  of  lien-holder  for,  on  lot  in  incorporated  city.  Form  No.  34. 

HAWAII. 

claim  of  lien,  by  original  contractor,  on  structure,  824,  note, 
notice  to  owner  of  furnishing  materials  or  performing  labor,   821, 
note. 

IDAHO. 

bond  for  performance  of  original  contract. 

answer  in  suit  on,  807,  note. 

counterclaim  set  up  in  action  on,  807,  note. 

form  of,  818,  note, 
building  contract,  form  of,  807,  note, 
claim  of  lien. 

against  two  contiguous  buildings  owned  by  same  person,  831,  note. 

original  contractor. 

affidavit  that  claimant  believes  same  to  be  just,  826,  note, 
on  structure,  824,  note, 
notice  of  owner  to  contractor  to  defend  lien  suits,  834,  note. 

IMPROVING.     See  tit.  Grading. 

or   grading  lot   in   incorporated   city,   complaint   of   lien-holder  for, 
Form  No.  34. 

INCORPORATED    CITY. 

claim  of  lien  for  grading  lot  in,  Form  No.  29. 

complaint  of  lien-holder  for  grading  or  improving  lot  in.  Form  No.  34. 

INSPECTION  AND  APPROVAL  OF  WORK. 

clause  in  building  contract  for.  Form  No.  13. 

JUDGMENT. 

satisfaction  of,  Form  No.  40. 

LABORER. 

contractor's,  claim  of  lien  by,  on  structure.  Form  No.  27. 
notice  by,  to  owner  of  performing  labor,  Form  No.  20. 
owner's,  claim  of  lien  by,  on  structure,  Form  No.  25. 


■ 


INDEX  OF  FORMS.  861 

LIABILITY. 

in  case  of  destruction  of  building  before  completion, 
owner  and  contractor  sharing  loss,  From  No.  11. 
owner  assuming  loss,  Form  No.  12. 

LIEN. 

of    owner's    material-men,   partners,    on    two   houses,    property    sold 

during  construction,  findings  and  decision.  Form  No.  38. 
of  subclaimant,  complaint  for  foreclosure  of.  Form  No.  35. 
release  of.  Form  No.  31. 

LIEN    CLAIMANTS. 

action  by  owner  against,  and  contractor,  806,  note. 

complaint  in  action  by,  for  grading  or  improving  lot.  Form  No.  34. 

LIEN-HOLDER. 

for  grading  or  improving  lot  in  incorporated  city,  complaint  to  fore- 
close. Form  No.  34. 

MATERIAL-MAN.     See  tits.  Contractor's  material-man;  Owner's  ma- 
terial-man. 
contractor's,  claim  of  lien  by,  on  structure.  Form  No.  27. 
owner's,  claim  of  lien  by,  on  structure,  Form  No.  25. 

MATERIALS. 

notice  to  owner  of  furnishing.  Form  No.  20. 

MINER'S    CLAIM    OF    LIEN.    See  tit.  Claim  of  lien. 

general  form  of.  Form  No.  26. 

MINING    CLAIM. 

notice  of  non-responsibility  by  owner,  Form  No.  18. 

MONTANA. 

building  contract  for  construction  of  railway  tunnel,  807,  note. 
claim  of  lien. 

for  grading  lot  in  incorporated  city,  833,  note. 

original  contractor,  just  and  true  account  of  amount  due,  824,  note. 

NEVADA, 
claim  of  lien. 

original  contractor. 

against  two  contiguous  buildings  owned  by  the  same  person,  831, 

note, 
for  grading  lot  in  incorporated  city,  833,  note, 
on  structure,  824,  note, 
verification  of,  826,  note. 


862  INDEX   OP   FORMS. 

NEVADA    (continued). 

notice  by  owner  to  contractor  to  defend  suits,  834,  note, 
notice  of  non-responsibility  by  owner  of  structure,  819,  note. 

NEW    MEXICO, 
claim  of  lien. 

against  two  contiguous  buildings  owned  by  the  same  person,  831, 

note, 
for  grading  lot  in  incorporated  city,  833,  note, 
miner's  claim  of,  828,  note, 
original  contractor  on  structure,  824,  note, 
notice  by  owner  to  contractor  to  defend  against  lien  suits,  834,  note, 
notice  of  non-responsibility  by  owner  of  structure,  819,  note. 

NON- STATUTORY    ORIGINAL    CONTRACT. 

builder's,  short  form,  Form  No.  15. 

complaint    for    foreclosure    of   lien,    by    original    contractor,    under, 
Form  No.  32. 

NOTICE. 

by  contractor  that  he  intends  to  dispute  account,  Form  No.  37. 
by  owner.     See  tit.  Notice  by  owner, 
of  non-responsibility  by  owner. 

mining  claim.  Form  No.  18. 

structure.  Form  No.  17. 
to  owner.    See  tit.  Notice  to  owner. 

NOTICE    BY    OWNER. 

of  cessation  from  labor.  Form  No.  21. 
of  completion  of  building,  Form  No.  21. 
of  non-responsibility. 

in  case  of  mining  claim.  Form  No.  18. 

in  case  of  structure,  Form  No.  17. 
to  contractor  to  defend  lien  suits.  Form  No.  30. 
verification  of.  Form  No.  22. 

NOTICE    TO    OWNER, 

of  furnishing  materials  or  performing  labor,  Form  No.  20. 

OKLAHOMA, 
claim  of  lien. 

original  contractor. 

form  of  statement,  824,  note. 

notice  of  filing  claim  to  be  served  on  owner,  824,  note, 
on  structure,  824,  note, 
notice  by  owner  to  contractor  to  defend  lien  suits,  834,  note, 
notice  of  claim  to  be  served  on  owner,  824,  note, 
notice  to  owner  of  furnishing  materials  or  performing  labor,  821,  note. 


INDEX    OF   FORMS.  863 

ORDER. 

of  reference,  Form  No.  36. 

OREGON. 

bond  for  performance  of  original  contract,  818,  note, 
building  contract. 

clause  providing,  as  to  delay,  814,  note, 
provisions  as  to  architect's  certificate,  811,  note. 
claim  of  lien. 

for  grading  lot  in  incorporated  city,  833,  note, 
original  contractor. 
on  mines,  824,  note, 
on  structure,  824,  note, 
verification  of,  826,  note. 
notice   of   non-responsibility   by   owner,   in   case    of    structure,   819, 

note, 
notice  of  owner  to  contractor  to  defend  lien  suits,  834,  note. 

ORIGINAL    CONTRACT.     See  tit.  Building  contract, 
bond  for  performance  of,  t^orm  No.  16. 

ORIGINAL    CONTRACTOR.    See  tit.  Contractor. 

claim  of  lien  by,  on  structure.  Form  No.  23. 
complaint  for  foreclosure  of  lien. 

under  non-statutory  original  contract,  Form  No.  32. 

under  statutory  original  contract,  Form  No.  33. 

OWNER. 

clause  for  delay  in  payments  by,  in  building  contract.  Form  No.  5. 
clause  in  building  contract  by  which  he  shares  with  contractor  loss, 

where  building  destroyed  before  completion,  Form  No.  11. 
clause  in  contract  by  which  he  assumes  loss  in  case  of  destruction 

of  building  before  completion,  Form  No.  12. 
notice  by.     See  tit.  Notice  by  owner, 
notice  of  non-responsibility.     See  tit.  Notice  by  owner, 
notice  to,  of  furnishing  materials  or  performing  labor,  Form  No.  20. 
statement  of  contractor  made  to  architect  or,  as  to  liens,  to  obtain 

payment.  Form  No.   19. 

OWNER'S    LABORER.     Sec  tit.  Claim  of  lien, 
claim  of  lien  by,  on  structure,  I'^orni  No.  25. 

OWNER'S   MATERIAL-MAN. 

claim  of  lien  by,  on  struct  urc.  Form  No.  25. 

findings  and  decision   in  case  of  partners,  on  two  or  more  houses, 
property  sold  during  construction,  Form  No.  38. 


864  INDEX   OF   FORMS. 

OWNER'S    NOTICE.    See  tit.  Notice  by  owner. 

PAYMENT. 

clause  for  delay  by  owner,  in  building  contract,  Form  No.  5. 
statement  of  contractor  made  to  architect  or  owner  as  to  liens,  to 
obtain,  Form  No.  19. 

PERFORMANCE. 

bond  for,  of  original  contract,  Form  No.  16. 

REFERENCE. 

order  of.  Form  No.  36. 

RELEASE    OF    LIEN. 

form  of.  Form  No.  31. 

SATISFACTION    OF    JUDGMENT. 

form  of,  Form  No.  40. 

SKELETON    FORM. 

of  statutory  original  contract,  Form  No.  1. 

SPECIFICATIONS. 

and  drawings,  construction  of,  clause  for,  in  building  contract,  Form 
No.  6. 

STATEMENT    OF    CONTRACTOR. 

made  to  architect  or  owner  as  to  liens,  to   obtain   payment,  Form 
No.  19. 

STATUTORY    ORIGINAL    CONTRACT. 

skeleton  form.  Form  No.  1. 

STRUCTURE. 

notice  of  non-responsibility  by  owner.  Form  No.  17. 

SUBCLAIMANT. 

claim  of  lien  by,  on  structure.  Form  No.  27. 
complaint  for  foreclosure  of  lien  of.  Form  No.  35. 

SUBCONTRACTOR. 

in  the  first  degree,  claim  of  lien  by,  on  structure.  Form  No.  27. 

UTAH. 

claim  of  lien. 

original    contractor    on    structure,    notice    of    intention   to    claim, 

824,  note, 
verification  of,  826,  note. 


INDEX   OF    FORMS.  865 

UTAH   (continued). 

statutory  original  contract,  payments  not  in  advance  of  commence- 
ment of  work,  809,  note. 

VERIFICATION. 

of  claim  of  lien  by  original  contractor,  structure.  Form  JNo.  23. 
of  notice  by  owner. 

of  cessation  from  labor.  Form  No.  21. 

of  completion  of  building,  Form  No.  21. 
to  claim  of  lien  by  original  contractor.  Form  No.  24. 
to  notice  by  owner,  Form  No.  22. 

WASHINGTON. 

bond  for  performance  of  original  contract,  818,  note. 

complaint  in  suit  on,  807,  note, 
building  contract. 

clause  for  alterations  in  contract,  812,  note. 

clause  for  liability  in  case  of  destruction  of  building  before  com- 
pletion, 814,  note. 

clause  for  working-drawjngs,  810,  note. 

clause  for  written  changes  in  contract,  813,  note. 

clause,  provision  as  to  delay  by  reason  of  default  of  owner,  810, 
note. 

clause,  provision  as  to  extra  work,  813,  note. 

clause  providing  facilities  for  inspection  by  owner,  810,  note. 

clause  providing  for  submission   of  disputes  to   arbitration,   814, 
note. 

clause   providing  for   three   days'   notice   to   supply   proper   mate- 
rials, 816,  note. 

clause  providing  for  three  days'  notice  to  terminate  contract,  816, 
note. 

substantial  compliance  with  law,  807,  note, 
claim  of  lien. 

against  two  contiguous  buildings  owned  by  same  person,  general 
form,  831,  note. 

for  grading  lot  in  incorporated  city,  833,  note. 

original  contractor,  on  structure,  824,  note. 

verification  of,  824,  note,  826,  note, 
complaint  for  foreclosure  of  lien,  836,  note, 
notice  by  owner  to  contractor  to  defend  lien  suits,  834,  note. 

WORKING-DRAWINGS. 

clause  for,  in  building  contract,  Form  No.  2. 

WRITTEN    CHANGES. 

in  contract,  clause  for,  in  building  contract.  Form  No.  8, 
Mech.  Liens  —  55 


866 


INDEX   OP   FORMS. 


WYOMING, 
claim  of  lien. 

original  contractor,  on  structure,  824,  note, 
verification  of,  826,  note, 
notice  to   owner  of  furnishing  materials  or  performing  labor,  821, 

note, 
owner's  notice  to  contractor  to  defend  lien  suits,  834,  note, 
statutory  original  contract,  809,  note. 


GENEEAL  INDEX. 

ABANDONMENT. 

actual,  by  parties,  time  of  filing  claim,  387. 

agreed,  of  contract,  requires  no  new  consideration,  164. 

by  contractor. 

error  in  date  of  notice  of,  382. 

excess  of  cost  on,  liability  of  surety  for,  569. 

owner's  liability,  289,  note. 

setting  up  in  answer,  662,  note, 
confounding  with  cessation  of  work,  477,  note, 
consent  of  owner  to,  283. 

estimating  work  done,  what  considered,  290,  note, 
evidence  of  liability  on,  696. 
excess  of  cost  on,  liability  of  surety  for,  569. 
final  payment  unavailable  for  lion  claimants  when,  290,  note, 
finding  as  to,  739. 
in  case  of  mutual,  of  work,  477. 
intent  to  abandon,  289,  note. 

of  contract,  how  owner  may  limit  liability  on,  246. 
of  non-statutory  original  contract,  liability  of  owner,  482. 
of  original  contract. 

as  to,  generally,  288. 

justification  of  abandonment,  290,  291. 

liability  of  owner  on,  480. 

lien  of  subclaimants,  limited  to  what,  290. 

owner's  liability,  289. 

value  of  materials  furnished  and  work  done,  290. 

what  constitutes,  481,  note. 

where   contractor   abandons   or   fails   to    perform,    rights   of   Bub- 
claimants,  290. 
of  valid  original  contract,  effect  of,  on  priorities,  464. 
of  void  contract. 

liability  of  owner,  482. 

rights  of  subclaimants  in  fund,  250,  note. 
Of  work. 

by  contractor,  time  of  filing  claim,  386,  387. 

on  irrigation-ditch  by  consent,  290,  note, 
right. 

of  owner  to  complete  on,  476. 

to  materials  on,  477. 
surety  finishing  building  after,  550,  note, 
under  a  valid  contract,  289,  note. 

(867) 


868  GENERAL   INDEX. 

ACCEPTANCE. 

as  a  waiver,  283. 

by  agent,  conclusive,  in  absence  of  fraud  or  mistake,  283,  note. 

delivery  of  keys  to  owner  and  his  going  into  possession,  284,  note. 

of  performance  as  to  construction  of  ditch,  284,  note. 

of  performance,  evidence  of,  696. 

use,  by  owner,  of  a  temporary  structure,  284,  note. 

ACCORD. 

agreement  to  assign  claims  to  owner  does  not  constitute,  when,  582. 

ACCOUNT. 

auditing  of,  as  provided  in  contract,  558. 
itemized,  not  required  in  claim  of  lien,  505,  note. 
"  statement  "  is  not  an,  333,  note. 

ACCOUNT    IN    CONTROVERSY. 

in  appeal.     See  tit.  Appeal. 

ACT    OF    1862. 

as  to  payment  of  contract  price  under,  209. 
right  to  create  mechanic's  lien  under,  423. 

ACTION. 

attorneys'  fees  for.     See  tit.  Attorneys'  fees. 

by  architect  for  services,  112,  note. 

consolidated.     See  tit.  Consolidated  action. 

consolidation  of,  727. 

early  statutes  affecting,  728,  note. 

findings  on,  728. 

on  appeal,  727,  note. 

on  notice  of  claim  of  lien,  523. 

power  to  consolidate,  inherent,  in  court  of  equity,  728,  note. 

relation  of  legal  services  to,  775. 

stipulating  as  to,  for  breach  of  contract,  551,  note. 

that  may  be  united  in  one  complaint,  649. 

to  cancel  contract,  amount  less  than  jurisdictional,  599,  note. 

to  foreclose  lien. 

as  to,  generally,  10. 

nature  of,  19. 
trial  after,  728. 
various  cases  of,  enumerated,  727,  note. 

ADDITIONAL    SECURITY.    See  tit.  Security, 
taking,  as  waiver  of  lien,  575. 

ADJOINING    HOUSE. 

referring  to,  in  statutory  original  contract,  as  pattern,  227. 


I 


GENERAL   INDEX,  869 

ADMISSION. 

in  answer  prevents  granting  of  nonsuit,  735. 
of  ownership  in  separate  answer,  798,  note. 

ADVANCES.     See  tits.  Future  advances;  Premature  payments. 
mortgages  for,  for  building  purposes,  448,  note, 
must  be  properly  made,  .56.5,  note, 
to  contractor  do  not  release  surety  when,  564,  565,  note. 

"AFTER    DEDUCTING    ALL    JUST    CREDITS    AND    OFFSETS." 

as  to,  generally,  312. 

not  necessary  to  use  expression  in  statement  of  demand,  315,  note. 

AGENCY.     See  tit.  Agent, 
actual  and  ostensible,  527. 

allegations  in  complaint  to  bind  contractor,  631. 
architect  as  agent,  533. 
authority. 

of  agent  to  create  mechanic's  lien,  527,  note, 
of  person  causing  improvement  to  be  made,  630. 
by  statutory  estoppel,  528. 
common-law,  of  the  owner,  effect  of,  61. 

contract  must  be  made  with  authorized  agent,  or  owner.  530.  note. 
contractor. 

and  subcontractor  not  owner's  agent  for  what  purposes,  529,  note, 
as  agent  of  owner,  631. 
as  statutory  agent  of  owner,  529,  note, 
is,  of  owner,  when  contract  void,  531. 
employment  by  corporation,  630. 
evidence  of,  534,  note. 

express  or  ostensible,  necessary  to  charge  owner,  494. 
finding  as  to,  sufficient  when,  746. 
general  principles  of,  527. 
how  proved,  677. 
husband  as  agent, 
of  owner,  528,  note, 
of  wife,  527,  note,  528,  note. 
in  case  of  mines  and  mining  claims,  630. 
of  contractor.     See  tit.  Contractor, 
of  employer,  not  presumed,   795. 
overcoming  presumption  as  to. 
knowledge. 

as  to,  generally,  678. 
of  lack  of  agency,  679. 

that  employer  incurred  indebtedness  on  his  own  account.  679. 
proof  of,  of  owner,  680. 


870  GENERAL   INDEX. 

AGENCY   (continued). 

person  in  possession  as  agent  of  owner. 

as  to,  generally,  531. 

before  amendment  of  1907,  533. 

mechanic's  lien  on  landlord's  interest  created  by  tenant,  532,  note. 

person  working  mine,  532. 

purchaser  in  possession  as  agent  of  grantee,  532,  note, 
personal  liability  of  agent,  536. 
presumption  of. 

as  to,  generally,  677. 

as  to  how  raised,  534. 

person  claiming  to  be  agent,  534. 
principal  bound  by  notice  to  agent,  536. 
purchaser  implied  agent  of  grantee,  532,  note. 
purely  a  statutory  one,  530,  note, 
purpose  of  provision  as  to,  528. 
special  statutory  provision,  677. 
•  statutory. 

in  creation  of  mechanic's  lien,  416. 

provisions  as  to,  in  creating  mechanic's  lien,  530. 

undue  extension  of  rules  of  common-law  agency,  535. 
to  receive  notice  of  claim  of  subclaimants,  536. 
undue  extension  to  statutory  agency  of  rules  of  common-law  agency, 

535. 
variance  between  pleading  and  proof  as  to,  material,  721. 
where  foreign  corporation  owns  mines,  678. 
wife  as  agent  of  husband,  527,  note. 

AGENT.    See  tit.  Agency. 
architect  as,  533. 
authority  of.     See  tit.  Authority. 
constructive,  employment  by,  680. 

contract  must  be  made  with,  or  with  owner,  530,  note. 
either  actual  or  statutory,  531,  note, 
notice  to,  principal  bound  by,  536. 
person  claiming  to  be,  and  acting  on  land  as,  534. 
personal  liability  of,  536. 
principal  bound  by  notice  to,  536. 

AGREED  PRICE. 

averred  in   complaint,  evidence   showing  no  agreed   price,   variance 

fatal,  735. 
pleading,  variance  in  proof,  material,  720. 

subclaimants  to  allege,  in  complaint  to  foreclose  lien  when,  627. 
variance  as  to,  material,  714. 

AGREED    STATEMENT. 

not  controlling  on  appeal,  792,  note. 


GENERAL   INDEX.  871 

AGREEMENT.     See  tit.  Contract. 

aflfecting  time  of  filing  claim  of  lien,  388. 
composition.     See  tit.  Composition  agreement, 
does  not  constitute  an  accord  when,  582. 
pro  rata  amount  left  blank,  effect  of,  581. 
to  arbitrate.    See  tit.  Arbitration  agreement, 
to  assign  claims  to  owner,  581. 
where  owner  does  not  seek  compromise,  582. 

AGRICULTURAL    PATENT. 

land  held  under,  not  within  statute,  146. 

ALASKA. 

construction  of  mechanic's-lien  statutes  in,  25,  note,  28,  note, 
mechanic's-lien  law  of,  5,  9. 

ALTERATION.     See  tit.  Contract. 
as  to,  generally,  193,  note. 

acceptance  by  owner  of  performance  of  contract  as  modified,  262. 
and  repair.     Sec  tit.  Alteration  and  repair, 
arbitration  to  determine  value  of  work  on,  195. 
architect  to  compute  value  of,  184,  note, 
by  oral  agreement,  193,  note. 
by  written  order,  194,  note, 
distinction  between,  and. 

"  erection,"   122. 

"  repair,"  121. 
in  contracts  affecting  sureties,  258,  note, 
in  work  by  order  of  architect,  557,  note. 
of  contract. 

by  architect,  264. 

conspiracy,  206.  * 

how  evidenced,  261. 
of  original  contract,  effect,  258. 
period  of,  in  work  on  building,  379,  note, 
subsequent  agreement,  261,  note. 

time  of  performance  of  non-statutorj-^  contract  enlarged,  261,  note, 
verbal  alterations  of  original  contract,  194. 
void  contract,  under,  195. 

ALTERATION    AND    REPAIR.    See  tit.  Alteration. 

claim  of  lien  must  specifically  designate  the  character  of  work,  92. 
extent  of,  as  affecting  lien,  93. 

ALTERATION    OF    INSTRUMENT.     See  tits.  Alteration;   Contract. 
priorities  in  case  of.     See  tit.  Priorities, 
as  to,  generally,  460. 


872  GENERAL   INDEX. 

AMBIGUITY.     See  tit.  Contract, 
aud  uncertainty,  demurrer  for,  654. 
where  husband  and  wife  parties  to  contract,  demurrer,  6.54,  note. 

AMENDED    COMPLAINT.     See  tit.  Complaint. 

AMENDMENT.    See  tits.  Answer;  Complaint;  Pleading. 
of  claim  of  lien,  368. 
of  1907. 

as  to  rule  before,  400. 

effect  of,  401. 
relation  of,  to  time  of  commencing  action,  727. 

AMOUNT  CLAIMED.    See  tit.  Claim  of  lien. 

less  than  jurisdictional  limit,  effect  on  commencing  action  to   fore- 
close lien,  598. 

AMOUNT    DUE. 

immaterial  issue  when,  741. 
tender  as  admission  of,  725,  note. 

AMOUNT    PAID. 

variance  as  to,  material.     See  tit.  Variance, 
as  to,  generally,  716. 

"  AND." 

in  statute  regarding  street-work,  effect  of,  95. 

ANOTHER    ACTION    PENDING, 
immaterial  issue  when,  741. 

ANSWER.     See  tit.  Pleading  and  procedure. 

as  to,  generally,  656. 

abandonment  by  contractor  must  be  set  out  in,  662. 

admission  in. 

of  amount  due  conclusive,  656. 

of  contract  in,  nonsuit  not  granted,  735. 
alleging. 

credit  given  by  laborer  in  mine,  660,  note. 

release  from  liability,  660,  note, 
amendment  to,  726,  note, 
counterclaim  may  be  set  up  in,  664. 
cross-complaint  in.     See  tit.  Cross-complaint, 
damages. 

for  delay  may  be  set. up  in,  666. 

sustained  by  owner  may  be  set  off  in,-  665. 
deficiencies  of  complaint  cured  by,  660. 


I 


GENERAL   INDEX.  873 

ANSWER  (continued), 
denial. 

for  want  of  information,  659. 
of  conclusion  of  law  insufficient,  657. 
\j         on  information  and  bolief,  where  matters  not  presumably  within 
knowledge  of  defendant,  658,  note, 
denial  on  information  and  belief. 
V         as  to,  generally,  658. 
•^      as  to  recorded  claim  of  lien,  659. 
^  /    denial  of  want  of  information,  659,  note. 
V  ,   evasive  denials,  660. 
exceptions  to  rule,  659. 
future  repairs. 

against  assignee,  666. 
as  to  setting  up  in,  665. 
where  there  is  a  mere  novation,  666. 
general  denial  in. 

as  to,  generally,  657. 

breach  of  original  contract  cannot  be  shown  under,  657. 
improper  allegations  in,  stricken  out,  661,  note. 

judgment  and  costs  in  action  against  agent  may  be  set  up  in,  664. 
mechanic's  lien  may  be  set  up  by  way  of,  663. 
must  be  positive,  658,  note, 
negative  pregnant, 
as  to,  generally,  657. 
in  admissions. 

as  to  amount  due,  658. 
as  to  value  of  labor,  658. 
in  alleging  assignment,  657. 
neglect  of  contractor  to  supply  materials,  etc.,  to  be  set  out  in,  661. 
orders  paid  may  be  set  up  in,  665. 
payments. 
V^  made  by  owner  to  be  set  out  in,  662. 

■'^  may  be  set  up  in,  664. 

plans  and  specifications  referred  to  in  contract,  but  not  filed,   not 

available  as  defense  in,  663. 
refusal  of  trial  court  to  permit  amendment  of,  799,  note, 
setting  off  liens,  costs,  and  expenses,  665.  note, 
setting  up  action  to  foreclose  prior  mortgage,  661,  note, 
special  defenses  to  be  set  up  in,  660. 

statutory  original  contract  void,  not  available  as  defense  in,  663. 
striking  out. 

allegation  of  tender  in,  661,  note, 
improper  allegations  in,  661,  note, 
supplemental.    See  tit.  Supplemental  answer, 
void  contract  not  available  as  defense  in,  663. 


g74  GENERAL   INDEX. 

APPEAL. 

as  to,  generally,  784. 

account  in  controversy,  786,  note. 

agreed  statement  not  controlling  court  on,  792,  note. 

attorneys'  fees  on.     See  tit.  Attorneys'  fees. 

bond  for  costs. 

as  to,  generally,  790. 
lien  subordinate  to  lien  foreclosed,  790. 
staying  judgment,  790. 
both  parties  attacking  estimate  of  superintendent,  799,  note, 
change  of  theory  as  to  base  of  right  of  lien,  784,  note, 
consolidated  case. 
as  to,  generally,  802. 
hearing  of,  802. 
contractor  not  joining  in,  786,  note. 
costs  on.     See  tit.  Costs. 

defect  in  complaint  cannot  be  alleged  for  first  time  upon,  651,  note. 
delivery-slips  as  books  of  original  entry,  799,  note. 
dismissal  as  to  one  defendant  not  reviewed  when,  792,  note, 
error.     See  tit.  Error. 

exclusion  of  evidence,  784. 
how  reviewed,  784. 
writ  of. 

as  to,  generally,  785. 

on  foreclosing  lien  on  land  and  fund,  785. 
findings.     See  tit.  Findings. 

that  materials  of  specified  value  were  furnished,  792,  note, 
harmless  error. 

as  to,  generally,  798. 

as  to  work  not  done  on  property,  799,  note. 

objecting  to  form  of  judgment  against  contractor  not  appealing, 

799. 
owner  objecting  to  non-joinder  of  contractor,  799. 
sufficiency  of  claim  of  lien,  800. 
Insufficient  record  on. 
as  to,  generally,  791. 
compliance  with  specifications,  791. 
void  contract,  791. 
modification  of  judgment  on,  enforcing  lien,  802,  note. 
notice  of. 

contents  of,  786. 
contractor. 

adverse  party,  default,  788. 
not  adverse  party,  787. 
on  default,  788. 

on  personal  judgment  against  contractor,  787. 
service  waived  by  stipulation,  790. 


I 


GENERAL   INDEX.  875 

APPEAL.     Notice  of  (continued). 

subsequent  mortgagee  injuriously  affected,  789. 
upon  whom  served,  787. 
waiver  of  service  of,  by  stipulation,  790. 
who  need  not  be  served  with. 
as  to,  generally,  790. 

contractor  not  appealing  and  no  judgment  against,  790. 
objecting  for  first  time  on, 
as  to,  generally,  800. 
as  to  defects  in  complaint,  800,  note, 
as  to  nature  and  extent  of  interest  in  land,  801,  note, 
constitutionality  of  provision  of  statute  as  to  sale  and   removal 

of  improvements,  800. 
contract  not  entirely  filed,  800. 
description  of  land,  801. 
findings  of  court  on  nonsuit,  800,  note, 
objection. 

to  complaint  of  subclaimant  on  ground  that  it  states  merely  con- 
clusions of  law,  800,  note, 
to  jurisdiction  of  coiirt,  as  to  venue,  800,  note, 
omission  to  request  amendment  to  pleadings  after  demurrer,  801, 

note, 
uncertainty  of  interest  in  property,  801. 
on  personal  judgment  against  wife,  792,  note, 
order  on.    See  tit.  Order. 
as  to,  generally,  802. 

attorneys'  fees.     See  tit.  Attorneys'  fees, 
new  trial.    See  tit.  New  trial, 
as  to,  generally,  802. 

conflict  of  evidence  as  to  street-work,  803. 
sustained  when,  802. 
parties  to. 

as  to,  generally,  785. 
definition  of  adverse  party,  785. 
on  death  of  one  personally  liable,  786. 
on  sale  from  judgment  denying  lien,  786. 
possible  error  in  admitting  expert  testimony,  799,  note, 
presumptions  on.    See  tit.  Presumption, 
as  to,  generally,  792. 

as  to  reasonableness  of  attorneys'  fees,  793. 
as  to  work  and  amount  found  due,  794. 
extent  of  land,  793. 
in  favor  of  findings  on,  736,  note, 
land  necessary  for  occupation,  793. 
lien  on  real  property,  792. 
support  of  findings, 
as  to,  generally,  793. 


876  GENERAL   INDEX. 

APPEAL.     Presumptions  on.     Support  of  findings  (continued), 
defense  not  pleaded,  794. 
reputed  owner,  793. 
what  not  presumed  on. 
as  to,  generally,  794. 
agency  of  employer,  794. 
service  of  notice  on  owner,  794. 
refusal  of  trial  court  to  permit  amendment  to  answer,  799,  note, 
separate  judgments  on  foreclosure  of  mortgage  and  mechanics'  liens, 

apportionment  of  costs,  784,  note, 
statutory  provisions  as  to,  784. 
stay  bond,  as  to,  generally,  791. 
stipulation  waiving  service  of  notice  of,  790. 
taken  from  judgment  foreclosing  lien,  786,  note, 
transcript  failing  to  show  motion  or  order,  792,  note, 
what  cannot  be  considered  upon,  from  order  denying  new  trial,  795, 

note, 
what  not  involved, 
appeal  by  owner,  795. 

former  order  denying  new  trial,  795,  note, 
validity  of  deficiency  judgment  against  contractor,  795. 
where  there  is  no  exception  to  the  finding,  799,  note. 

APPEARANCE. 

of  infants,  600,  note. 

APPLICATION. 

of  payment  for  benefit  of  surety,  557,  note. 

APPLICATION    OF    PAYMENT.     See  tit.  Pajrment. 

APPROVAL. 

assignability  of  estimates.     See  tit.  Estimate. 

"  APPURTENANCES." 

lien  upon  well  and,  395,  note. 

ARBITRATION.    See  tits.  Arbitration  agreement;  Composition  agree- 
ment, 
as  condition  precedent  to  action  to  foreclose  mechanic's  lien,  620, 

note, 
award.     See  tit.  Award, 
condition  precedent  to  recovery  when,  195. 
demands  made  by  contractor  which  should  be  submitted  to,  under 

the  contract,  696,  note, 
submission  to. 
revocable,  183. 
without  protest,  182,  note. 


I 


GENERAL   INDEX.  877 

ARBITRATION    AGREEMENT.     See  tit.  Arbitration, 
alterations,  value  to  be  computed  by  architect,  184,  note. 
California  rule,  180. 

distinction  between  two  classes  of  cases,  182. 
good  faith  and  open  dealings  of  arbitrators,  183. 
meeting  before  presenting  claim  to,  184,  note, 
not  final,  181. 

procuring  award,  condition  precedent,  181. 
set  aside  arbitration,  court  will,  for  extra  work  when,  184,  note. 

ARBITRATORS.    See  tit.  Arbitration  agreement, 
good  faith  and  open  dealings  of,  183. 

ARCHITECTS.     See  tits.  Certificate  of  architect;  Laborer;  Plans  and 
specifications, 
action  for  services  of,  112,  note. 

adoption  of  unreasonable  rules  by  board  of,  effect  of,  107. 
agent  of  owner.  111. 
alteration. 

in  work  by  order  of,  557,  note. 

value  of,  to  be  computed  by,  184,  note. 
as  agent  of  owner,  533. 
as  subcontractor.  111. 

averments  of  complaint  by,  sufficient  when,  613,  note, 
cannot  be  compelled  to  give  certificate,  188,  note, 
certificate  of.    See  tit.  Certificate  of  architect. 

effect  on  time  of  filing  claim,  386. 

waiving,  520. 
conditions  precedent  to  lien,  construction  of.  111. 
contract. 

for  drawing  plans  and  specifications  for  public  building,  109,  note. 

for  plans  and  specifications,  169,  note,  171,  note. 

of  unlicensed,  108. 
definition  of,  102,  note,  108. 
dishonesty  of,  188,  note, 
dismissal  of,  effect  on  certificate,  189. 
fraud  of.    See  tit.  Fraud. 

as  to,  generally,  188,  note, 
lien   for  drawing  plans  and   specifications  and   superintending  con- 
struction, 120,  note, 
limitation  of  action  by,  against  school  board,  593,  note, 
municipal  ordinances  regulating,  107. 
not  general  agent  of  owner.  111,  note, 
obligations  of,  112. 

oral  declarations  after  giving  certificate,  683,  note, 
power  of. 

as  to,  generally,  110. 

to  alter  contract,  264. 


878  GENERAL   INDEX. 

ARCHITECTS   (continued). 

proof  that  certificate  of,  was  given  without  sufficient  investigation, 

684,  note, 
provision  that  material  shall  be  satisfactory  to,  waiver,  196. 
relation  between,  and  owner,  111. 
relations  of,  107. 
repudiation. 

of  part  breach  of  entire  contract,  109,  note. 

of  part  of  contract  by  owner,  rights  of  architect,  590,  note, 
rights  of. 

as  to,  generally,  109. 

to  lien,  110. 
statutory  provisions  as  to,  108. 

ARIZONA. 

meehanie's-lien  law  of,  5. 

ARTISAN.    See  tit.  Laborer. 
definition  of,  102,  note. 

ASSIGNABILITY. 

of  estimates.     See  tit.  Estimate. 

ASSIGNED    LIENS. 

including  several,  in  statement  of  demand,  315,  note. 

ASSIGNEE.     See  tit.  Assignment. 
after  lien  is  perfected,  539. 
future  repairs  may  be  set  up  against,  in  foreclosure  of  lien,  when, 

666. 
general  rights  of,  542. 
of  mechanic's  lien,  588,  note, 
of  note  of  contractor  filing  claim  with  assignee  in  insolvency,  545, 

note, 
of  owner's  laborer,  538,  note, 
owner  as,  of  claim,  539,  note, 
title  of,  of  security,  right  to  enforce,  541. 

ASSIGNMENT.     See  tit.  Assignee. 
after  lien  perfected,  539. 
conditional  acceptance,  effect  of,  544. 
construction  of,  "  subject  to  conditions  of  original  contract,"  538, 

note, 
defenses  arising  subsequent  to,  544. 
effective  when,  540.  note. 
failure  to  give  notice  of,  538,  note. 


■ 


GENERAL   INDEX.  879 

ASSIGNMENT  (continued). 
formalities  of. 

as  to,  generally,  539. 

copartnership  claim,  540. 
in  case  of  insolvency  and  bankruptcy,  545. 
notice  of. 

as  to,  generally,  542. 

question  of  fact,  542. 

to  one  who  does  not  understand  the  English  language,  542. 
of  debt. 

from  partnership  to  one  partner,  539. 

necessary,  541. 
of  inchoate  right  of  lien,  538. 
of  liens,  necessity  for  writing,  540,  note, 
of  mechanic's  lien,  538,  note, 
of  moneys  to  become  due  under  lien,  21,  note, 
of  note  of  contractor  filing  claim  with  assignee  in  bankruptcy,  545, 

note. 
of  prior  mechanic's  lien  to  subsequent  mortgage,  538,  note, 
of  public  contract,  545,  note. 

parol  evidence  to  show  object  and  purpose  of,  675. 
pleading,  of  claim,  538. 
premature  payments,  546. 

reassignment  to  claimant  of  assigned  claim,  538,  note, 
release  prior  to  assignment,  543. 
rights  of  assignee  under. 

as  to,  generally,  542. 

cutting  off  rights  of  his  claimants,  543. 

latent  equities,  543. 
separate,  of  debt  and  security,  541. 
splitting  demands  not  allowed,  541. 
title  to  security,  and  right  to  enforce,  541. 
to  surety  on  contractor's  bond,  545. 
unaccepted  order  does  not  amount  to  an,  540. 

ASSIGNOR   OF    CONTRACT. 

release  of,  580,  note. 

ATTACHMENT.     See  tit.  Remedies, 
as  to,  generally,  591. 
for  damages  claimed  for  brcJich  of  contract  in  failure  to  deliver,  591, 

note, 
for  materials  furnished,  548. 
garnishment.    See  tit.  Garnishment. 

after  suit   commenced,  591. 

before  suit,  591. 

of  public  moneys,  591,  note, 
materials  exempt  from,  592. 


880  GENERAL   INDEX. 

ATTACK    ON    FINDINGS. 

when  not  allowed,  748. 

ATTORNEYS'    FEES.    See  tit.  Costs, 
as  to,  generally,  770. 
agreement  as  to,  775. 
allowance  of. 

not  disturbed  on  appeal,  803,  note. 

without  allegation  in  finding,  803,  note, 
amended  complaint,  726,  note, 
amendment.     See  tit.  Amendment. 

affecting  injunction,  726,  note. 

as  to  description  of  property,  727. 

as  to  express  or  implied  contract,  726. 

by  striking  out  allegation  as  to  contract,  726. 

relation  of,  to  time  of  commencing  action,  727. 

to  answer,  726,  note. 

to  change  to  quantum  meruit,  726,  note. 

to  complaint.     See  tit.  Complaint. 

alleging  changes  made  in  conformity  with  contract,  726,  note. 
in  action  on  express  contract,  726,  note. 

to  conform  to  proof,  726,  note, 
application  for,  in  supreme  court,  776. 
are  allowed  upon  the  foreclosure  of  mechanic's  and  laborer's  lieu, 

771,  note, 
assessment  in  costs  error,  770,  note, 
based  on  items  contested,  774,  note, 
bill  of  exceptions  showing  value  of,  803,  note. 
California  provision  as  to,  constitutionality  of,  47. 
Colorado  doctrine,  48. 
complaint  in  action  on  express  contract. 

as  to,  generally,  726. 

amendment  to  quantum  meruit,  726. 
consolidation  of  actions.     See  tit.  Actions. 

as  to  attorneys'  fees  in  each  action,  727,  note. 

becomes  single  action,  727,  note. 

cases  of  consolidation  of  actions,  various,  727,  note. 

court  making  separate  findings  in  cases  consolidated,  effect,  728, 
note. 

findings  on.    See  tit.  Findings, 
as  to,  generally,  728. 

on  appeal.     See  tit.  Appeal, 
as  to,  generally,  727,  note. 

power  of,  inherent  in  court  of  equity,  728,  note. 

right  of  claimants  against  one  another,  728. 

trial  after.     See  tit.  Trial, 
as  to,  generally,  728. 

where  owner  party  to  only  some  of  consolidated  actions,  728,  note. 


GENERAL   INDEX.  881 

ATTORNEYS'  FEES  (continued). 

contractor  not  entitled  to,  when,  722,  note. 

costs,  assessment  in,  error,  770,  note. 

court  should  not  fix,  at  unreasonably  small  or  insufficient  amount, 

773,  note, 
deposit  of  money  in  court.    See  tit.  Deposit, 
as  to,  generally,  729. 
payment  of  balance  of  fund,  729. 
discretion  of  lower  court  as  to,  776,  note, 
error  to  assess,  in  costs,  770,  note. 
evidence  of,  not  necessary,  673. 
fixing,  on  appeal,  776. 
for  preparing  claim  of  lien,  775. 
in  Idaho,  held  valid,  48,  note. 
in  Montana,  held  invalid,  48,  note, 
in  New  Mexico,  held  valid,  48,  note. 
in  Oregon,  held  valid,  48,  note. 
in  Washington,  held  valid,  48,  note, 
intervention.     See  tit.  Intervention. 
eflfect  of,  729. 
right  of,  730. 
jury  trial.    See  tit.  Trial  by  jury, 
as  to,  generally,  731. 
verdict.     See  tit.  Verdict. 
setting  aside,  732. 
liability  for,  of  surety  on  contractor's  bond,  488,  note, 
lower  court  fixing,  in  supreme  court,  776. 
making  new  cause  of  action,  726,  note, 
measure  of,  773. 

nature  of,  and  their  relation  to  costs,  772. 
new  trial.     See  tit.  New  trial. 

as  to,  generally,  732. 
no  allegation  as  to,  necessary. 

in  action  for  damages  for  breach,  647. 
in  action  to  foreclose  mechanic's  lien,  647,  note, 
nonsuit.     See  tit.  Nonsuit, 
for  excessive  claim,  734. 
for  failure  to  file  claim,  734. 
not  granted  for. 

answer  admits  making  of  contract,  735. 
disagreement  between  allegations  and  proof  when,  735. 
variance  as  to  agreed  price  when,  735. 
not  granted  when. 
as  to,  generally,  733. 
in  case  of  void  contract,  733. 
where  statute  of  limitations  pleaded,  734. 
sustained  upon  appeal  when,  733. 
Mech.  Liens  —  56 


882  GENERAL   INDEX. 

ATTORNEYS'  FEES   (continued). 

not  allowod,  except  on  foreclosure  of  liens  on  property,  771. 

not  excessive  when,  773,  note. 

on  appeal,  803. 

paid  out,  recoverable  as  damages,  647,  note. 

plaintiff  cannot  recover,  out  of  the  proceeds  when,  722,  note. 

presumption  as  to  reasonableness  of,  793,  note. 

properly  allowed  and  reasonable  when,  773,  note. 

reasonable,  stipulated  at  trial,  evidence,  725,  note. 

reduction  of,  774,  note. 

relation  of  legal  services  to  action,  775. 

review  by  supreme  "court  of  abuse  in  allowing,  803,  note. 

stipulated  at  trial,  725,  note. 

stipulation  not  excluding,  776. 

surety  on  contractor's  bond,  liability  for,  488,  note. 

unconstitutionality  of  provision,  770. 

Washington  doctrine,  48. 

when  owner  not  liable  for,  777. 

AUDITING    ACCOUNTS.     See  tit.  Account. 

AUDITOR'S    CERTIFICATE.    See  tit.  Certificate. 

mere  filing  indorsement  of  date  and  page  of  record  proves  nothing, 

687,  note, 
of  recordation  of  notice  proves  what,  687,  note. 

AUTHORITY.     See  tit.  Agent. 

knowledge  of  lack  of,  of  employer  as  waiver  of  lien,  575. 
to  make  improvements,  effect  of  knowledge  of  claimant  of  lack  of, 
443. 

AWARD.     See  tit.  Arbitration. 

interest  properly  allowed  on  amount  of,  754,  note. 

BANKRUPTCY. 

assignment  of  claim  in  case  of,  545. 

building  in  course  of  erection  by  bankrupt,  546,  note. 

construction    given    by    state    courts    as    to    preferential    statutory 

claims,  546,  note, 
contractor's  trustee  in,  546,  note, 
liens  mentioned  in  act  of,  546,  note. 

BANKRUPTCY    PROCEEDINGS. 

stay  on,  725,  note. 

BEAR    MEAT. 

furnished  to  laborers  in  a  mine,  not  subject  of  lien,  89. 


GENERAL   INDEX.  883 

BENEFITS. 

evidence  of,  conferred,  696. 

BILLS. 

provision  for  payment  of,  in  statutory  original  contract,  sufficiency 
of,  211. 

BLACKSMITH. 

sharpening  tools  used  in  mining,  entitled  to  mechanic's  lien,  91,  note. 

BLANK. 

in  agreement  to  assign  claims  to  owner,  as  to  effect  of,  581. 

BOARD    OF    EDUCATION. 

liability  for  breach  of  contract,  492. 

BOARD    OF    TRUSTEES. 

estimate  by  members  of,  185,  note. 

BOARDING-HOUSE. 

on  mining  claim,  included  in  mechanic's  lien  when,  139,  409. 

BOARDING-HOUSE    KEEPER. 

furnishing  board  to  men  working  on  job  entitled  to  mechanic's  lien, 
91,  note. 

BONA    FIDE    PURCHASERS. 

name  to  be  given  in  claim  of  lien,  349. 

BOND. 

action  for  damages  for  failure  to  give,  589,  note. 

and  contract  executed  at  the  same  time,  construed  as  one  instru- 
ment, 167,  note. 

conflict  between,  as  exhibit  and  complaint,  655. 

for  costs,  790. 

given  to  secure  performance  of  building  contract,  168,  note. 

of  contractor.     See  tit.  Bond  of  contractor. 

parol  evidence  admissible  to  show  supposed  principal  a  surety,  675, 
note. 

plaintiff  suing  in  behalf  of  claimant  on,  604,  note. 

receiver  as  party  defendant  in  action  to  forecloso  mechanic's  lien, 
605,  note. 

staj'ing  judgment,  790. 

variance  between  pleading  and  proof  as  to  signature  by  principals, 
immaterial,  723. 


884  GENERAL   INDEX. 

BOND    OF    CONTRACTOR.     See  tit.  Bond, 
act  requiring,  held  unconstitutional,  47. 
action  for  failure  to  take,  218,  note. 
action  on. 

complaint  in,  219,  note. 

damages  for  failure  to  file,  219,  note. 

limitation  of,  219,  note. 

subclaimants  entitled  to  enforce,  to  what  extent,  219,  note. 
assignment  to  surety  on,  .545. 
California  decisions  regarding,  219,  220. 
complaint  in  action  on,  219,  note. 
construction  of. 

as  to,  generally,  558. 

"  claims  accruing,"  559. 

money  advanced  not  "  materials,"  within  obligation,  559. 

performing  obligation  of  void  contract,  559. 
effect  of  giving,  common-law  obligation,  218. 
failure  to  file,  damages  for,  219,  note. 
in  California,  provision  for,  unconstitutional,  217. 
in  Colorado,  valid,  217,  note, 
in  Hawaii,  not  necessary,  218,  note. 
in  Washington,  valid,  218,  note,  220. 
insufiicient,  219,  note. 
is  collateral  obligation,  enforceable  by  subclaimants  to  what  extent, 

219,  note, 
limitation  of  action  on,  219,  note,  594,  note. 
on  public  school  house,  219,  note. 
on  public  work.    See  tit.  Public  work, 
statutory  requirements  of. 

as  to,  generally,  551. 

application  of  provision,  552. 

contract  void,  bond  valid,  553. 

formalities,  552. 

liability  on,  554. 

when  enforceable  as  a  common-law  obligation,  554. 
surety's  liability.    See  tit.  Surety. 

for  attorneys'  fees,  etc.,  488,  note, 
void,  effect,  552. 

BOOK-KEEPER. 

of  mine,  not  entitled  to  mechanic's  lien,  91,  note. 

BOOKS    OF    ACCOUNT. 

evidence  to  show  matters  in  which  kept,  674. 

BOOKS    OF    ORIGINAL    ENTRY. 

admission  of  delivery-slips  as,  799,  note. 


GENERAL   INDEX.  885 

BREACH    OF    AGREEMENT.     See  tit.  Breach  of  contract. 

BREACH    OF    CONTRACT.     See  tit.  Contract, 
burden  of  proof  to  show,  68L 
by  employer,  rights  of  contractor,  66. 
by  nonfeasance  and   malfeasance  of  contractor,   249. 
damages  for,  findings  as  to,  740. 
liability  of  owner  on,  480. 
owner  may  waive,  551,  note, 
stipulating  as  to  action  for,  551,  note. 

BUILDER.     See  tit.  Laborer, 
definition  of,  102,  note, 
not  original  contractor  when,  61. 

BUILDING. 

as  material,  92. 

character  of,  in  determining  fixtures,  148. 

completion  of.     See  tit.  Completion  of  building. 

description  of  whole  or  part  of,  in   action   to  foreclose  mechanic's 

lien,  646. 
destruction  of.     See  tit.  Destruction  of  building. 

by  fire,  effect  on  lien,  397. 
destruction  of,  by  fire,  before  completion,  effect  on  lien,  269. 
distinct  from  the  land,  319,  note. 

false  representation  as  to  ownership,  effect  on  lien,  407. 
group  of  buildings,  materials  for,  lien,  404,  note. 
lien  upon. 

alone,  407. 

distinct  from  land  when,  151,  note, 
non-completion  of,  evidence  of,  686. 
of  determining  whether  contract  valid,  390. 
on  separate  lots,  liens  on,  299,  note,  300. 

period  of  alteration  or  other  work  on  construction  of,  379,  note, 
presumed  to  be  attached  to  land  upon  which  erected,  325,  note, 
removed  from  land,  effect  on  lien,  397. 
separate. 

on  non-contiguous  lots,  right  to  lien,  300,  note. 

on  separate  lots  erected  under  separate  contracts,  right  to  lien, 
300,  note, 
severance  from  freehold  changes  character  of  property,  152. 
sidewalk  part  of,  under  certain  circumstances,  147. 

BUILDING    CONTRACT.     See  tit.  Contract, 
as  to,  generally,  155. 
common  clauses  peculiar  to.    See  tit.  Common  clauses. 


886  GENERAL   INDEX. 

BUILDING  CONTRACT     (continued). 
consent  and  meeting  of  minds. 

false  reference  to  plans  and  specifications,  163, 
fraud.     See  tit.  Fraud. 

as  to  effect  on,  162. 
in  street  improvement,  inchoate  contract,  161. 
indefiniteness  of  contract,  163. 
mistake,  162. 
necessity  of,  162. 
construction  of.     See  "  Instances  of  construction,"  this  title, 
ambiguity  or  uncertainty  in,  168. 
contract  and  bond  executed  at  same  time,  167,  note, 
dependent  and  independent  promises,  172. 
entire  and  severable  contracts,  169. 
explained  by  circumstances,  173. 
in  general,  155,  note,  167. 

interpreted  most  strongly  against  party  bound,  169,  note, 
joint  and  several  contracts,  172. 
jury  to  draw  inference  from  facts,  175,  note. 
of  architect's  contract,  169,  note. 
one  contract  for  four  buildings,  170,  note, 
particular  clauses,  general  intent,  169. 
reasonable  stipulations,  when  implied,  174. 
several  contracts  relating  to  same  matter,  168. 
time  of  performance  unspecified,  174. 
to  bore  two  thousand  feet  of  well-holes,  171. 
to  grade  railroad,  172. 

to  timber  a  tunnel  in  workmanlike  manner,  171. 
warranty. 

as  to,  generally,  175. 

of  design  or  plan  under  express  specifications,  175. 
where  bond  is  given  to  secure  performance,  168,  note, 
where  law  defines  what  is  a  reasonable  time,  175,  note, 
where  monthly  accounts  are  rendered,  169,  note, 
where  no  time  fixed  for  payment,  170,  note, 
where  public  body  contracts  to  provide  materials,  174. 
contract, 

as  to,  generally,  164. 
agreed  abandonment  of  contract,  164. 
for  drawing  plans  and  specifications,  156,  note, 
made  with  reference  to  statute,  161. 
definition. 

of   "  building  contract,"  157. 

of  "  contract,"  156. 

of  "  contract  for  street- work,"   166. 

of  "  non-statutory  original  contract."   1G6. 


GENERAL   INDEX.  887 

BUILDING  CONTRACT.     Definition   (continued). 
of  original  contract. 
as  to,  generally,  165. 
as  to  contractor's  contract,  165. 
as  to  owner,  laborer,  and  material-man,  165. 
of  "  statutory  original  contract,"  166. 
of  subcontract,  166. 
effect  of  sale  of  premises  on  mechanic's  lien  under,  415,  note, 
entry  in  minutes  of  school  board,  155,  note, 
erasure  in.     See  tit.  Alteration. 

as  to,  generally,  163,  note, 
essentials  of,  156. 

extinction  of  contract.    See  tit.  Extinction  of  contract, 
for  public  works,  155,  note, 
general  principles,  155. 
Instances  of  construction  of  contract. 
as  to,  generally,  176. 

under  contract  containing  clause  for  deviations,  179. 
water  company  contracting  to  supply  water,  178. 
where   original   contractor  furnishing  materials   and   work,   as   to 

knowledge  of  defects,  178. 
written  contract  to  furnish  machinery,  177. 
mechanic's  lien  where  work  to  be  performed  in  another  state,  155, 

note, 
non-statutory  original  contract.    See  tit.  Non-statutory  original  con- 
tract, 
of  penalty,  176. 

of  statutory  original  contracts,  176. 
"  original  contract,"  term  not  used  in  statute,  156. 
parties  to. 

competency   of,   157. 

corporations,  158. 

effect  of  contract  on  interests  of,  161. 

executor. 

as  to,  generally,  158. 
can  make  no  contract  as  to  what,  158. 
making  unauthorized  original  contract,  effect,  158. 
for  street-work,  161. 
guardian  of  minor,  157. 
implied  contract,  159. 

not  necessary  that  person  contracting  for  building  shall  be,  159. 
owner,  contract  not  binding  on,  lien  fails,  159. 
penalty  in,  176. 
ratification,  164. 
statutory  original  contract.     See  tit.  Statutory  original  contract. 


888  GENERAL   INDEX. 

BURDEN    OF    PROOF.     See  tit.  Evidence, 
as  to,  generally,  680. 
as  to  breach  of  agreement,  681. 
as  to  cessation  from  work,  682. 
as  to  priorities,  681. 
as  to  time  of  filing  claim,  682. 
as  to  validity  of  claims  of  sublienors,  681. 
on  claimant,  680,  note,  681,  note. 

CALENDAR. 

preference  on,  Oregon  practice,  725,  note. 

CALIFORNIA    STATUTE. 

classes  of  liens  provided  by,  3. 
classification  of  liens  under. 

another  classification,  II. 

as  to  the  contractual   relation,   10. 

as  to  the  object  or  thing  to  which  lien  attaches,  10. 

the  classification  adopted  in  this  work,  11. 
confusion  of  authorities  as  to,  21. 
construction  of.     See  tit.  Construction. 

as  to,  generally,  20. 
contractual  relation  between  owner  and  original  contractor,  12. 
distinguished  from  others,  3. 
evolution  of,  5. 
fundamental  idea  of,  5,  note. 
kinds  of  subjects  or  work  provided  for. 

liens  for  street-work.    See  tit.  Street-work. 

liens  upon  mining  claims.    See  tit.  Mines  and  mining  claims. 

liens  upon  structures,  3. 
lien  on  fund,  15. 

lien  on  structure  separate  from  land,  14. 
lien  under. 

a  favored,  9. 

and  mortgage  compared,  18. 
mechanic's-lien  law.    See  tits.  Mechanic's  lien;  Mechanic 's-Iien  law. 

divisions  of,  134. 

provisions  of  statute,  134. 
nature  and  scope  of  right  conferred  by,  20. 

nature  of  action  to  foreclose  lien.     See  tits.  Action;  Foreclosure  of 
lien. 

as  to,  generally,  19. 
nature  of  lien  secured  under. 

as  to,  generally,  10. 

a  favored  lien,  9. 
object  or  thing  to  which  lien  attaches,  13. 


GENERAL   INDEX.  889 

CALIFORNIA  STATUTE  (continued). 
penal  provisions  of,  how  construed,  26. 
person  availing  himself  of  benefit  of  structure  to  pay,  14. 
places  where  found,  5. 

questions  under,  raised  in  the  decisions,  3. 
relation  of  lien  to  debt,  17. 
spirit  of  the  law,  6. 
theory  of  the  law,  7. 
valid  and  void  contracts,  effect,  12. 

CANAL. 

deed  of  trust  on,  priority  of  mechanics'  liens,  456,  note. 

description  of,  in  claim  of  lien,  357. 

extent  of  land  subject  to  mechanic's  lien  on,  404. 

CARPENTERS.    See  tit.  Laborers. 

employment  at  fixed  rate  per  diem,  aggregate  wage  more  than  one 
thousand  dollars,  effect  on  lien,  104,  note. 

CARTAGE. 

where  charged  as  part  of  cost  of  material,  subject  of  lien,  91. 

"  CASH." 

equivalent  to  "  money  "  or  "  ready  money,"  346. 
meaning  of  word,  346. 

CAUSES    OF    ACTION.     See  tit.  Joinder  of  causes  of  action. 

setting  up,  in  foreclosure  of  lien.     See  tits.  Complaint;  Foreclosure 
of  lien. 

CERTIFICATE. 

as  to,  generally,  187. 

architect  cannot  be  compelled,  in  court  of  equity,  to  give,  188,  note. 

as  evidence. 

as  to,  generally,  682. 

of  time  of  completion  of  building,  684. 
conclusiveness  of,  190,  683. 

dismissal  of  architect,  effect  on  provision  for,  189. 
dissatisfaction  with  work  no  ground  for  withholding,  188,  note, 
failure  to  obtain,  effect,  187,  note, 
of  architect.     See  tit.  Certificate  of  architect, 
of  chief  engineer  of  railroad,  684.  note. 
of  engineer. 

fraudulently  withheld,  effect,  188.  note. 

of  completion  of  work,  191. 
of  extra  work.     See  tit.  Extra  work. 


890  GENERAL   INDEX. 

CERTIFICATE    (continued). 

oral  declarations  of  architect  after  giving,  683. 

payments  made  from  time  to  time  without  requiring,  effect  of,  189, 

note, 
procuring  of  completion,  condition  precedent  when,  187. 
resolution  of  board  of  supervisors,  683,  note, 
waiver  of,  189. 
when  excused,  188. 
withheld  by  engineer  fraudulently,  effect,  188,  note. 

CERTIFICATE    OF    ARCHITECT. 

discharge  of  architect,  effect  of,  as  to,  189. 

dishonesty  of  architect,  188,  note. 

effect  on  time  of  filing  claim,  386. 

excuse  for  not  obtaining,  need  not  be  pleaded,  621. 

given  without  sufficient  investigation,  684,  note. 

CESSATION    OF    WORK.     See  tits.  Abandonment;  Completion. 

as  affected  by  validity  or  invalidity  of  original  contract,  287. 

burden  of  proof,  682. 

character  of,  286. 

confounding  abandonment  with,  477,  note. 

notice  of.    See  tit.  Notice  of  completion  or  cessation  of  work. 

running  of  statute  on,  285. 

scope  of  statutory  provision,  285. 

sufficiency  of  allegation  of,  653. 

CHANGES.     See  tit.  Contract. 

oral  agreement  as  to  extra  work,  193,  note. 

CHIEF    ENGINEER. 

certificate  of,  conclusive,  684,  note. 

CHUTES.     See  tit.  Mines  and  mining  claims. 
true  significance  of  word,  127. 

CIRCUMSTANCE  S. 

contract  explained  by,  173. 

CITY    CHARTER. 

admissibility  of,  in  evidence,  671,  note. 

CLAIM.     See  tits.  Claim  (ff  lien;  Claim  to  owner. 

construction  of  phrase  "  claims  accruing,"  in  contractor's  bond,  559. 
non-presentation  of,  by  owner's  laborer,  761,  note, 
owner  as  assignee  of,  539,  note. 


GENERAL   INDEX.  891 

CLAIM    OF    LIEN.     See  tits.  Claim;  Claim  to  owner. 
alleging  contents  of  claim  generally,  638. 
and  notice  of  claim  to  owner  distinguished,  292. 
and  proof,  variance  between.     See  tit.  Variance. 
as  to,  generally,  713. 
immaterial  when,  717-719. 
material  when,  714-716. 
as  an  exhibit  to  complaint,  1138. 
as  equivalent  of  notice  to  owner,  512. 
as  evidence  of  lien.     See  tit.  Evidence, 
as  to,  generally,  686. 

recorder's  indorsement  of  filing  prima  facie  evidence  of  what,  687. 
assignable. 

in  Co)orado,  20,  note, 
in  Oklahoma,  20,  note, 
claimant  must  designate  whether  the  work  was  alteration,  construc- 
tion, etc.,  92. 
construction  of.     See  tit.  Construction, 
as  to,  generally,  305. 
claim  filed  must  show  what,  306,  note. 

general  rule  for  determination  of  sufficiency  of  claim,  308. 
liberal  construction,  substantial  compliance  only  required,  305. 
one  rule  only  for  all  claimants,  307. 
requisites  of  claim, 
as  to,  generally,  308. 
variance,  effect  of,  309. 
with  reference  to. 

fullness  of  statement,  308. 
truthfulness  of  statement,  309. 
statute  must  be  strictly  pursued,  306,  note, 
strict  construction  when,  307. 
substantial  compliance,  liberal  construction,  305. 
unnecessary  statements. 
as  to  effect  of,  309. 
contractual  relation  with  owner,  310. 
implications  of  law,  309. 
knowledge  of  owner,  309. 
other  statements,  310. 
surplusage,  312. 
contents  of. 

amendment  of  claim, 
as  to,  generally,  368. 

clerical  errors  regarded  as  corrected  when,  369. 
no  aider  by  averment  in  complaint,  369. 
charge,  claim  of,  360. 
claim  of  charge,  360. 


892  GENERAL   INDEX. 

CLAIM  OF  LIEN.     Contents  of   (continued). 

description   of  property.     See  tit.  Description  of  property  to  be 
charged, 
as  to,  generally,  347. 

application  of  provision  as  to  demands  against  separate  build- 
ings. 

as  to,  generally,  358. 

consolidation  of  mining  claims,  359. 

effect  of  non-compliance,  359. 

grading  and  street  work,  359. 

specific  amount  due,  359. 

street-work,  359. 
before  enactment  of  the  statute,  348. 
bona  fide  purchasers. 

California  rule  as  to,  349. 

statutory  provisions  as  to,  349. 
construction  of  description,  353. 
"  correct  "  description,  348,  note, 
description  as  including  too  much  or  too  little. 

as  to,  generally,  356. 

in  case  of  canal   or  railroad,  357. 

in  case  of  mines  and  mining  claims,  357. 

too  little  land,  356. 

too  much  land,  356. 
general  rule  as  to  description,  350. 
object  of  provision,  349. 

property  identified  by  name  or  exclusive  character,  354,  355. 
special  applications. 

false  calls,  351. 

particular  description  repugnant  to  general  description,  352. 
"  sufficiency  of  identification  "  a  question  of  fact,  351. 
two  or  more  descriptions. 

as  to,  generally,  358. 

statutory  provisions,  358. 
under  early  statutes,  348,  note, 
error  and  mistake  in  claim, 
as  to,  generally,  365. 
analysis  of  code  provision,  366. 
as  to  terms  of  contract,  365,  note, 
as  to  time  of  last  payment,  365,  note, 
general  statement, 
as  to,  generally,  303. 

claim  containing  all  facts  required  by  statute  sufficient,  304,  note, 
contents  of  notice  to  owner,  305. 
need  not  contain  all  the  facts,  304. 
substantial  compliance  with  statute,  304. 
twofold  character  of  claim  to  lien,  304,  note, 
whatever  the  statute  makes  necessary,  303,  note. 


GENERAL   INDEX.  893 

CLAIM  OF  LIEN.     Contents  of  (continued). 
names  required  to  be  stated  in  claim, 
as  to,  generally,  317. 
"  causing  "  improvement,  329. 
change  of  ownership,  321. 
employer. 

general  rule  as  to,  326. 

name  of  person  to  whom  material  was  furnished,  326.  note, 
name  of,  to  be  giA'en  in  claim,  326. 
husband  and  wife,  omission  of  either  having  interest,  effect,  320, 

note, 
if  claimant  does  not  know  name  of  owner  of  fee,  what  to  be 

done,  323-325. 
if  it  is  sought  to  affect  the  building  only,   319. 
inferential  statements. 
as  to,  generally,  328. 
contractual  relation,  request,  328. 
indebtedness,  328. 
knowledge  of  name,  322. 
mistake. 

as  to  legal  and  equitable  ownership,  320,  note, 
in  christian  name  of  employer,  327,  note, 
name  of  agent,  329. 
name  of  owner  or  reputed  owner, 
as  to,  generally,  318. 
under  Washington  code,  319,  note, 
naming  person  causing  improvement  insufficient,  329,  note, 
object  of  this  statement  in  claim,  318. 
omission   of   name   of   owner  whose   interest   is   to   be   charged, 

effect,  319,  note, 
owner. 

at  time  of  filing  claim,  321. 
reputed,  318. 

under  the  Washington  code,  319,  note, 
substantial  compliance  with  statute,  318,  319. 
two  or  more  employers  or  purchasers,  330-332. 
under  void  statutory  original  contract,  327. 
when  statement  shows  contract  with  contractor.  328,  note, 
signature  to  claim, 
as  to,  generally,  360. 

omission  to  add  to  place  of  residence,  362,  note, 
statement  of  demand. 

commingling  lienable  and  non-lienable  items. 
Arizona  doctrine,  316,  note, 
effect,  31 G. 
Hawaiian  doctrine,  316,  note. 


894  GENERAL   INDEX. 

CLAIM   OF    LIEN.     Contents   of.     Statement    of  demand.     Commin- 
gling lienable  and  non-lienable  items   (continued). 

New  Mexico  doctrine,  316,  note. 

Oregon  doctrine,  316,  note. 

Washington  doctrine,  316,  note, 
construction  of  the  word  "  demand,"  313,  note, 
deduction  of  credits  and  offsets,  312. 
demand. 

against  two  or  more  buildings,  317. 

means  what,  313. 
effect  of  false  statement,  314,  note. 
error  or  mistake  in  statement  of  demand,  312,  note, 
itemizing  unnecessary,  313,  note, 
object  of  provision  as  to  demand,  315. 
statement. 

as  to  use  in  building  not  required,  315. 

embracing  several  assigned  liens,  315,  note, 
what  sufficient  compliance  with  statute,  315. 
terms,  time  given,  and  conditions  of  contract, 
as  to,  generally,  333. 

amount  of  entire  contract  price  should  be  stated,  343,  639. 
"  cash,"  common  meaning  of  "  money,"  346. 
claim  not  stating  expressly  that   materials   were   furnished   by 

claimant,  334,  note, 
construction  of  provision,  333. 
construction  of  the  word   "material"   as  used  in  such   claims, 

342. 
dates,  as  to  statement  of,  344. 
description  of  the  materials  furnished,  342,  note, 
exact  meaning  of  some  of  these  words,  333. 
express  and  implied  agreement  as  to  price,  340. 
general  rules  as  to  statement,  334. 

general  statement  of  terms,  time,  etc.,  only  is  required,  336. 
implication  of  law  need  not  be  stated,  335,  note, 
items  of  account,  342. 
nature  of  labor  to  be  given,  342. 
necessity   of   subclaimant   showing   actual   contractual   relation, 

338,  note, 
no  statement  as  to  reasonableness  of  agreed  price,  341. 
object  and  construction  of  provision,  333. 
partial  payments,  claimant  cannot  insist  on,  346. 
presumption  in  absence  of  allegation  cannot  be  indulged  in,  335. 
reference  to  other  papers,  339. 
setting  out  terms  of  original  contract,  338. 
showing  as  to  quantity,  time,  and  value,  337,  note, 
showing  contractual  indebtedness,  337. 


GENERAL   INDEX. 


895 


CLAIM  OF  LIEN.     Contents  of.     Terms,  time  given,  and  conditions 
of  contract   (continued), 
statement. 

as  to  improvement,  336,  note. 

as  to  price  of  labor,  340. 

merely  that  owner  entered  into  contract  with  contractor,  341, 

note, 
of  the  terms  given  and  conditions  of  .contract,  336. 
of  the  terms  of  contract,  when  sufficient,  342,  note, 
that   "  labor  was  performed  by  the  day  at  the  agreed  price 
of,"  etc.,  sufficiency  of,  342,  note, 
sufficiency  of  statement, 
of  claim,  342,  note, 
of  terms  and  condition,  343,  note. 
"  time  given,"  meaning  of  expression,  345. 
when  no  time  of  payment  was  stated,  345. 
where  claim  sets  forth  the  contract  price,  341. 
uncertainty  in  claim, 
as  to,  generally,  364. 

as  to  whether  one  or  two  buildings,  365,  note, 
date  of  contract  need  not  be  inserted,  365,  note. 
in  description,  365,  note, 
uncertainty  in  statement.     See  "  Uncertainty  in  claim,"  this  title, 
as  to,  generally,  366. 
illustrations. 

as  to,  generally,  367. 
as  to  amount  due,  367. 
as  to  contract,  367. 
as  to  names,  367. 
as  to  non-lienable  items,  368. 
verification.     See  tit.  Verification, 
as  to,  generally,  361,  364. 
by  agent,  364. 
by  attorney. 

as  to,  generally,  364. 
of  foreign  corporation,  362,  note, 
errors  and  omissions,  364. 
form  of,  362. 

pleadings  of,  not  applicable  to  claim,  362. 
provisions  as  to,  of  pleadings  not  applicable,  362. 
time  of,  364. 
contractor  including  amount   of  subcontractor,  effect   on  latter,  77. 
costs  of,  not  demandable  on  tender  before  suit,  725,  note, 
defective,  as  notice  to  bona  fide  third  parties,  538. 
description  in. 

cannot  be  helped  out  by  parol  evidence,  688. 
of  property  to  be  charged  with  lien  must  be  given,  638. 
distinction  between,  and  notice  of  claim  to  owner,  292. 


896  GENERAL   INDEX. 

CLAIM  OF  LIEN   (continued). 

duly  executed  and  recorded,  does  not  prove  itself,  687,  note, 
error. 

clerical,  regarded  as  corrected  in,  when,  369. 
harmless,  effect  on  sufficiency  of  claim,  800. 
failure  to  file,  nonsuit  for,  734. 
filing  claim.     See  tit.  Filing  claim  of  lien, 
for  excessive. 
materials,  579. 
price,  579. 
for  non-lienable  materials,  579. 
forfeiture  by  false  or  excessive,  as  to,  577,  578. 
fullness  of  statement  as  to,  308. 
harmless  error,  as  to  the  sufficiency  of,  800. 
mistake  in  claim,  finding  as  to,  736,  note, 
must  show  what,  306,  note, 
name  of  owner,  alleging  in  complaint,  638. 
nature  of,  293. 
necessity  of  one  or  more, 
as  to,  generally,  298. 

material-man  should  not  file  separate  claims  when,  301. 
materials    used    elsewhere    than    in    improvement    on    which    lien 

claimed,  300. 
nature  and  purpose,  generally,  292. 
persons  joining  in  same  claim  of  lien,  299. 
separate  claim  of  lien  not  required  when,  299. 
several  objects  and  pieces  of  property,  300. 
various  items  of  labor  or  material,  301. 
not  setting  forth  plans  and  specifications,  sufficiency  of  complaint  on, 

653. 
not  synonymous  with  "  notice  of  lien  "  and  "  lien,"  293,  note. 
"  notice  of  lien  "  and  "  lien  "  not  synonymous  with  "  claim  of  lien," 

293,  note, 
notice  to  be  filed,  and  operation  thereof,  292,  note, 
notice  to  owner,  distinction  from,  504. 
objections  to  contents  of  lien, 
as  to,  generally,  688. 

description  of  property  not  correctly  given,  688. 
name  of  owner  or  reputed  owner  not  correctly  stated,  688. 
omission  of  essential  fact  not  aided  by  averment  in  complaint,  369. 
original  claim  competent  evidence  where  recorded,  687,  note, 
ownership,  change  of,  does  not  require  new,  299. 
purpose  of. 

as  to,  generally,  297. 

essential  to  perfection,  of  lien,  298. 

to  inform  claimants,  298. 

to  inform  owner,  297. 


GENERAL   INDEX.  09/ 

CLAIM  OF  LIEN  (continued). 

recorded.     See  tit.  Recorded  claim  of  lien. 

removal  of,  from  recorder's  office.  37."). 

resemblance  between  statutory  provisions  as  to,  292. 

right  personal,  511. 

rule  for  determination  of  sufficiency  of,  308. 

separate  under  separate  contracts,  upheld,  300,  note. 

several. 

persons  joining  in,  299. 

pieces  of  property  affected,  300. 
statute  must  be  strictly  pursued,  306,  note, 
statutory  original  contract  verbal  and  void,  claimant  must  comply 

with  statutory  provisions,  296. 
Statutory  provisions  as  to. 

California  statute,  294. 

Colorado  statute,  294,  note. 

Oregon  statute,  294,  note. 

Utah  statute,  294,  note. 

Washingon  statute,  294,  note, 
terms,  time  given,  and  conditions  of  contract  to  be  set  out,  343,  639. 
time  of  filing. 

allegation  of,  in  complaint  to  foreclose.     See  tit.  Complaint. 

statutory  completion  for  purpose  of  filing,  637. 
truth  of  statement  as  to,  309. 
unnecessary  statements  in,  as  an  exhibit,  640. 
variance.    See  tit.  Variance. 

between. 

as  to,  generally,  711. 

and  pleadings  or  proof.     See  tit.  Variance. 

claim  as  an  exhibit  and  allegations  of  complaint,  639. 

from  strict  requirements,  309. 
various  items  of  labor  or  material,  301. 
when  is  necessary. 

as  to,  generally,  295. 

in  case  of  furnishing  materials  for  work  in  mining  claim,  295. 

necessity  for  claim  of  lien,  296. 

statutory  original  contract  verbal,  296. 
where  contract  involves  construction  of  buildings  on  separate  lots, 
299,  note,  300. 

CLAIM    TO    OWNER. 

excessive  claim  in  notice  of,  502,  note. 

CLAIMANT.     See  tit.  Claim  of  lien. 
but  one  rule  of  construction  for,  307. 
effect  of  failure  to  give  notice,  508,  note, 
losing  lien,  right  of  general  creditors,  546. 
Mech.   Liens  —  57 


898  GENERAL   INDEX. 

CLAIMANT   (continued). 

not  knowing  name  of  owner  of  fee,  requirements  of,  in  filing  claim, 

323. 
not  required  to  make  survey  of  lot  before  filing  claim,  350. 
priorities.     See  tit.  Prioilties. 

rule  regulating,  has  no  reference  to,  449,  note, 
purpose  of  claim  of  lien  to  inform,  298. 
required  to  comply  strictly  with  statute,  22,  note, 
right  to  lien,  how  determined,  42,  note, 
statute  construed  so  as  to  protect,  23,  note. 

substantial  compliance  lays  foundation  for  lien  in  Colorado,  24,  note, 
under  subcontractor,  limitation  of  lien  of,  413. 

"CLAIMS    ACCRUING." 

construction  of  phrase  in  contractor's  bond,  559. 

CLASSIFICATION.     See  tit.  California  statute, 
of  mechanics'  liens. 

a  general  classification,  10. 
another  classification,  11. 

CLERICAL    ERROR. 

regarded  as  corrected  in  claim  of  lien  when,  369. 

COLORADO. 

claim  for  lien  assignable  in,  20,  note, 
direct  lien  in,  12,  note. 
mechanic's-lien  law  of. 

as  to,  generally,  5,  12. 

act  of  1883,  6,  note. 

act  of  1893,  6,  note. 

modeled  after  California  statute,  6,  note, 
substantial  compliance  lays  foundation  for  lien,  24,  note. 

COMMON    CLAUSES.     See  tits.  Building  contracts;  Contracts. 

as  to,  generally,  180. 
arbitration  clause. 

agreement  not  final,  181. 

as  to  California  rule,  180. 

distinction  between  two  classes  of  cases,  182. 

good  faith  and  open  dealings  of  arbitrators,  183. 

submission  to. 
revocable,  183. 
without  protest,  182,  note. 

when  procuring  award,  condition  precedent  to  recovery,  181. 
certificates.    See  tits.  Architect's  certificate;  Certificate. 

as  to,  generally,  187. 


GENERAL   INDEX. 


899 


COMMON  CLAUSES  (continued). 

architect  cannot  be  compelled  in  court  of  equity  to  give,  188,  note. 

conclusiveness  of,  190. 

dishonesty  of  architect,  188,  note. 

dismissal  of  architect,  189. 

dissatisfaction,  for  work  not  ground  for  withholding,  when,  188, 

note, 
failure  to  obtain,  187,  note, 
of  engineer  as  to  completion  of  work,  191,  note, 
payments  made  from  time  to  time  without  requiring,  effect,  189, 

note, 
■waiver  of,  189. 
when  excused,  188. 

withheld  by  engineer  fraudulently,  188,  note, 
estimates. 

as  to,  generally,  185. 
approval  and  assignability  of,  185,  note, 
by  members  of  board  of  trustees,  185,  note, 
extra  work.     See  tit.  Extra  work. 
as  to,  generally,  191. 
alterations,  as  to,  193,  note, 
application  of  payments.     See  tit.  Pajrment. 
arbitration.     See  tit.  Arbitration, 
as  to  whether  work  is  under  original   contract,  or  is  extra,   192, 

note, 
changes  by  oral  agreement  is,  193,  note, 
conditions  precedent,  196. 
construction  of  contract  as  to,  191,  note, 
contract  in  writing,  194. 
definition  of,  191. 
estoppel,  194. 
evidence  of,  191,  note, 
payment.     See  tit.  Pajrment. 
provided  for  in  contract,  192. 
subsequent  to  mortgage,  195,  note, 
verbal  alteration  of  original  contract,  194. 
void  contract,  no  lien  for,  195. 
waiver. 

as  to,  generally,  196. 

agreement  of  contractor  not  to  file  lien,  199,  note. 

condition  precedent,  199. 

public  property,  on,  not  necessary,  200. 

statutory  provisions  in  California,  198. 
where  contract  provides  engineer  may  direct  additions,  194,  note, 
written  order  for,  194,  note,  195. 
liquidated  damages.    See  tit.  Liquidated  damages. 


900  GENERAL   INDEX. 

COMMON    COUNTS. 

evidence  admissible  under,  689,  689,  note, 
in  action  to  foreclose  mechanic's  lien,  618. 
proof  of  value  on,  705. 

special  contract  offered  in  evidence,  nonsuit  should  not  be  granted 
for  variance,  735. 

COMMON-LAW    BOND.     See   tits.  Bond;   Bond   of   contractor. 

formalities,  554. 

surety's  liability.     See  tit.  Surety. 

COMMON-LAW    OBLIGATION. 

of  contractor  on  bond,  218. 

COMMUNITY    PROPERTY. 

action  to  foreclose  lien  on,  service  of  summons  on  one  spouse  only, 

600,  note, 
both  spouses  necessary  in  action  to  foreclose  lien  on,  605,  note, 
bound  by  mechanic's  lien  when,  426,  note, 
wife  not  served,  sale  of,  enjoined,  592. 

COMPETENCY. 

of  parties  to  contract,  157. 

COMPLAINT.     See  tit.  Pleading  and  procedure. 

as  to,  generally,  613. 
agency. 

allegations  to  bind  contractor,  631. 

authority  of  person  causing  improvement  to  be  made,  630. 

contractor  as  agent  of  owner,  631. 

employment  by  corporation,  630. 

in  case  of  mines  and  mining  claims,  630. 
allegation. 

as  to  attorneys'  fees  not  necessary,  647,  note. 

as  to  value  of  extra  work  must  be  made  in,  689. 

of  agreement  to  do  work  by  month  at  specific  amount,  635,  note. 

of  fees  paid  out  recoverable  in  defense  of  action  for  breach  of 
contract,  647,  note. 

that  assignment  in  writing  not  necessary,  619,  note. 

that  plaintiff  paid  for  recording  claim  of  lien  not  necessary,  636, 
note. 

under  logger's  lien,  624,  note, 
alleging. 

amount  owing  from  owner  to  contractor,  623,  note. 

character  of  material,  .632,  note. 

damages,  647,  note. 

excuse  for  not  securing  certificate  as  condition  precedent,  621,  note. 


GENERAL   INDEX.  901 

COMPLAINT.     Alleging  (continued). 

generally,  that  the  constructor  of  building  was  the  contractor,  629, 

note, 
material  to  have  been  furnished  on  given  date,  619,  note, 
prospective  profits,  647,  note. 

sufficient   cause   of   action   for   recovery   of   money   judgment    not 
subject  to  demurrer,  652. 
amended. 

failure  of  record  to  show  filing  of,  on  default  judgment,  613,  note, 
filing  without  service  of  copy,  abuse  of  discretion  by  court,  613, 

note, 
relates  back  to  date  of  original  complaint  when,  .59.5. 
amendment.     See  tit.  Amendment. 

alleging  changes  made  in  conformity  with  contract,  726,  note, 
arbitration  as  a  condition  precedent  to  action,  620,  note, 
as  to  necessity  of  alleging, 
date  of  contract,  619,  note. 

statutory  original  contract  in  writing,  619,  note, 
averment  in. 

by  architect,  613,  note, 
of  condition  precedent,  620,  note. 

of  construction  and  acceptance  sufficient  when,  623,  note, 
of  non-payment  essential,  622,  note, 
claim  of  lien.    See  tit.  Claim  of  lien. 

alleging  contents  of  claim,  as  to,  generally,  638, 

as  exhibit  to  complaint,  638. 

description  of  property  to  be  charged,  638. 

name  of  owner,  638. 

terms,  time  given,  and  conditions  of  contract,  639. 

time  of  filing. 

as  to,  generally,  636. 

statutory  completion  for  purposes  of,  637. 
unnecessary  statement  in  claim  as  an  exhibit,  640. 
variance   between    claim   as   an    exhibit   and   allegations   of   com- 
plaint, 639. 
conflict  between. 

and  bond  as  exhibit,  655. 
and  exhibit.     See  tit.  Variance, 
as  to,  generally,  654. 
damages.    See  tit.  Damages, 
as  to,  generally,  647. 
attorneys'  fees.    See  tit.  Attorneys'  fees, 
as  to,  generally,  647. 

paid  out,  recoverable  as  damages,  047,  note, 
defect  in,  waived  how,  633. 

defective,  not  aided  b}-  parol  evidence,  368,  note, 
deficiencies  in,  cured  by  answer,  660. 


902  GENERAL   INDEX. 

COMPLAINT  (continued). 
description  of  property. 

as  to,  generally,  643,  644. 

in  claim  of  lien  referred  to. 
as  to,  generally,  646. 
plaintiff  may  disregard  lack  of  precision,  646. 

land  for  convenient  use  and  occupation,  644,  645. 

of  whole  or  part  of  building,  646. 
employment. 

as  to,  generally,  634. 

death  of  owner,  634. 
estoppel  by  deed  or  matters  of  record  must  be  set  out.  614.  note, 
failing  to  show  privity,  630,  note. 

failure  to  plead  facts  to  bind  husband's  interests,  630,  note, 
general  principles  of  pleading,  614. 
general  rules  of  pleading  contract. 

as  to,  generally,  616. 

certificate  of  architect,  621. 

common  counts.    See  tit.  Common  counts, 
as  to,  generally,  617. 

where  contract  continues  executory,  617. 
where  contract  partly  performed  has  been  abandoned,  618. 
where  work  done  was  under  special  agreement, 
as  to,  generally,  618. 
modification  of  rule,  618. 

completion  of  building,  620. 

conditions  precedent,  620. 

debt  due,  622. 

exceptions  to  the  rule,  616. 

express  contract,  619. 

non-payment  of  indebtedness  to  plaintiff,  622. 

premature  payment  to  contractor  by  owner,  623. 

prevention  of  performance,  621. 

technical  defects  cured  by  acts  of  parties,  619. 
gist  of  action  to  foreclose  mechanic's  lien,  614,  note. 
good  against  general  demurrer  when,  638,  note. 
in  action. 

by  builder  and  architect,  613,  note. 

to  recover  compensation  due  to  builder,  613,  note, 
interest  allowed  from  date  of  filing,  753,  note, 
joinder  of  cause  of  action  in.     See  tit.  Joinder  of  causes. 

as  to,  generally,  648. 

actions  that  may  be  united  in  one  complaint,  649. 

designating  causes  of  action  separately,  648. 

objections  to  joinder,  how  raised,  650. 

reference  from  one  cause  of  action  to  another,  649. 

several  mining  claims  involved,  648. 


GENERAL   INDEX.  903 

COMPLAINT  (continued). 

knowledge  of  improvement  by  owner,  629. 

lack  of  essential  averments  in,  aided  by  answer  or  cross-complaint 

when,   61;j,   note. 
materials,  allegation  and  proof. 

as  to,  generally,  632. 

affixed  and  attached,  6-33. 

dates  on  which  material  furnished, 
as  to,  generally,  634. 
"  on   or   about,"   634. 

defect  in  complaint  waived  how,  633. 

reference  to  claim  of  lien  as  exhibit,  633. 
must  affirmatively  appear  from,  that  notice  filed  contained  all  essen- 
tial provisions,  637,  note. 
nature  of  labor. 

as  to,  generally,  635. 

extra  work,  635. 

grading  and  other  work,  635. 
no  aider  of  claim  of  lien  by  averment  in,  369. 
notice  of  non-responsibility,  629. 
notice  to  contractor,  where  action  against  fund,  625. 
notice  to  owner.    See  tit.  Notice  to  owner. 

as  to,  generally,  623. 

complaint  by  subcontractor's  material-man,  625. 

conclusion  of  law,  624. 

indebtedness  due  contractor  from  owner  at  time  of,  as  to,  gener- 
ally, 624. 
object  of  labor. 

as  to,  generally,  636. 

a  well,  636. 
other  interests. 

as  to,  generally,  640. 

alleging  no  other  claim  upon  fund,  643. 

for  what  purposes  alleged,  640-642. 
ownership. 

as  to,  generally,  628. 

conveyance,  629. 
pleading  damages  under  contract  for  liquidated  damages,  647,  note, 
request  of  owner. 

as  to,  generally,  625. 

contract  alleged  presumed  to  be  non-statutory,  625. 

subclaimant,  625. 
stating  cause  of  action. 

as  to,  generally,  614. 

general  rule. 

as  to,  generally,  615. 

of  pleading  contract.    See  "  General  rules  of  pleading  contract," 
this  title. 


904  GENERAL   INDEX. 

COMPLAINT  (continued). 

to  foreclose  mechanic's  lien,  substantial  compliance  with  statute,  613, 

note, 
variance  between,  and  exhibit,  653. 
verification  of,  648. 
void  contract.    See  tit.  Void  contract. 
as  to,  generally,  626. 
agreed  price. 

as  to,  generally,  627. 

in  absence  of  demurrer  for  uncertainty,  627. 
value  of  work  done,  627. 
amount  due,  626. 

facts  showing  original  contract  to  be  void,  626. 
request  of  owner,  627. 

COMPLETION.      See    tits.  Completion    of    building;    Completion    of 
work. 
actual,  what  constitutes,  385,  note, 
date  of,  finding  as  to,  738. 
filing. 

claim  of  lien  after,  379. 

notice  of,  372,  note, 
finding  as  to,  740. 

meaning  of,  in  building  contract,  265. 
of  improvement,  what  constitutes,  372,  note, 
payment.    See  tit.  Completion  payment, 
statutory,  for  purpose  of  filing  claim  of  lien,  637. 

COMPLETION    OF    BUILDING.    See  tit.  Completion, 
evidence  of. 

as  to,  generally,  685. 

original  contract  as  though  void,  686. 
explanation  by  witness  on  redirect  examination,  685,  note, 
false  representation  of  owner  as  to,  500. 
finding  as  to,  739. 

rejection  of  evidence  as  to  waiver  of  provision  in  contract,  685,  note, 
statutory  evidence  as  to,  686. 

to  be  completed  by  certain  date,  harmless  error  in  striking  out  evi- 
dence, 685,  note. 

COMPLETION    OF    WORK.     See  tit.  Completion. 
certificate  of  engineer  as  to,  191,  note, 
immaterial  issue  when,  742. 
notice  of.    See  tit.  Notice  of  completion  or  cessation  of  work. 

COMPLETION    PAYMENT. 

general  provision  as  to,  474. 

where  owner  obliged  to  furnish  material  and  labor,  471. 


GENERAL   INDEX.  905 

COMPOSITION    AGREEMENT.      See    tits.  Arbitration;    Release    of 
lieu, 
as  to,  generally,  580, 

agreement  to  assign  claims  to  owner,  581. 
definition  of,  580. 
effect  of. 

as  to,  generally,  582. 

all  creditors  need  not  sign,  582. 

COMPUTATION. 

accepted  aa  sufiiciently  accurate,  675,  note. 

COMPUTATION    OF    TIME.     See  tit.  Time. 

first  and  last  day  in,  378,  note. 

CONCLUSIONS    OF    LAW. 

amount  due  from  owner  to  contractor  at  time  of  notice  is  a,  624. 
and  findings  of  fact.     See  tit.  Findings. 

as  to,  generally,  745. 
demurrer  to,  655. 

CONCLUSIVENESS. 

of  certificate.     See  tit.  Certificate, 
as  to,  generally,  190. 

CONCURRENT    CONDITIONS.     See  tit.  Conditions. 

CONDITION    PRECEDENT. 

as  to,  generally,  268. 

alleging  performance  in  action  to  foreclose  mechanic's  lien,  620. 

arbitration  as  a,  620,  note. 

arbitration  is,  when,  195. 

certificate  of  architect  as.     See  tit.  Certificate. 

as  to,  generally,  199. 
concurrent,  268,  note, 
duty  of  architect,  110. 
estimate  is,  when,  195. 

excusing  not  securing  certificates  as  a,  621,  note, 
in  building  contract,  nature  of,  196. 
in  improvements  on  public  property,  200. 
of  payment.     See  tit.  Payment, 
pleading,  generally,  662,  note. 

procuring  award  by  arbitration  is,  to  recovery  when,  181. 
tendering  performance  without,  268,  note, 
waiver  of,  196. 
written  order  is,  when,  195. 


906  GENERAL   INDEX. 

CONDITIONAL    ACCEPTANCE. 

of  assignment,  effect,  544. 

CONDITIONAL    COMPENSATION. 

finding  as   to,   739. 

CONDITIONS.    See  tit.  Condition  precedent. 

pleading,  generally,  662,  note. 

CONFLICT. 

between  bond  as  exhibit  and  complaint,  655. 

between  claim  as  exhibit  and  body  of  complaint.     See  tit.  Variance, 
as  to,  generally,  654. 

CONSENT. 

and  meeting  of  minds  necessary  to  valid  contract,  162. 

contract  signed  by  one  party,  162,  note. 

fraud  as  affecting,  162. 

mistake  as  affecting,  162. 

of  owner,  necessity  that  contract  be  made  with,  159,  note. 

CONSIDERATION. 

express  or  independent,  not  necessary,  164. 
for  abandonment  of  contract,  164. 
for  contract,  164. 

CONSOLIDATED    ACTIONS.     See  tit.  Appeal, 
decree  foreclosing  lien  on,  752. 
findings  in,  744. 

hearing  on  appeal.    See  tit.  Appeal, 
as  to,  generally,  802. 

CONSPIRACY. 
as  to  price. 

generally,  242. 

penalty  for,  243. 
in  alteration  of  contract,  206. 

CONSTITUTION.    See  tits.  Constitutional  law;  Constitutionality. 

effect  of,  on  statutory  provision  as  to  priority  of  lien  claimants,  465. 
of  California. 

does  not  give  lien  to  contractors  and  subcontractors  as  such,  32. 

not  self-executing,  31,  33. 

operation  of,  32. 

raising  question  of  validity  of  statute  under,  34. 
provisions  of,  in  relation  to  lien-holders,  134. 
rights  of  subcontractor  under,  74. 


i 


GENERAL   INDEX.  907 


CONSTITUTIONAL    LAW.     See  tit.  Constitution. 
contractor's  bond.     See  tit.  Bond  of  contractor, 
jurisdiction.     See  tit.  Jurisdiction, 
power  of  reputed  owner, 
as  to,  generally,  39. 
estoppel,  40. 
priorities.     See  tit.  Priorities, 
provisions  creating  lien. 

constitution  not  self-executing,  31,  33. 
in  California. 

as  to,  generally,  31. 

not  given  to  contractors  and  subcontractors,  32. 
in   Georgia,  31,  note, 
in  Louisiana,  31,  note, 
in  North  Carolina,  31,  note. 
in  Texas,  31,  note. 

operation  of  the  new  California  constitution,  32. 
raising  question  of  constitutionality,  34. 
repeals.     See  tit.  Repeal. 

as  to  effect  of,  generally,  46. 
retrospective  laws,  41. 
right  to  lien  under  constitution,  .52. 
statutes  creating  lien. 

constitutionality  of,  generally,  34. 
contractual  relation,  effect  on,  37,  38. 
homestead.     See  tit.  Homestead. 
"  impairing  obligations  of  contracts,"  40, 
in  California. 

act  of  1868,  34,  note,  36. 
act  of  1891,  34,  note, 
act  of  1893,  31,  note, 
act  of  1897,  31,  note,  34,  note. 
act  of  1901,  35,  note. 
in  Colorado. 

as  to,  generally,  34,  note, 
act  of  1883,  35,  note, 
act  of  1889,  35,  note, 
act  of  1899,  31,  note, 
act  of  1903,  35,  note, 
in  Georgia,  34,  note, 
in  Montana,  act  of  1905,  35,  note, 
in  Utah,  act  of  1896,  35,  note, 
in  Washington. 

as  to,  generally,  35,  note, 
act  of  1893,  36,  note, 
act  of  1895,  36,  note, 
act  of  1897,  36,  note. 


908  GENERAL   INDEX. 

CONSTITUTIONAL    RIGHT.     See  tit.  Constitution. 

to  lien,  52. 

CONSTITUTIONALITY. 

of  provisions  of  statute  as  to  sale  and  removal  of  improvements, 

cannot  be  raised  first  time  on  appeal,  800,  note, 
of  provisions  requiring  notice  of  completion  or  cessation  of  work, 

380,  note. 
of  statute.    See  tit.  Constitutional  law. 
as  to,  generally,  34. 

of  mechanic's-lien  laws  generally  upheld,  34,  note,  35,  note, 
raising  question  of,  34. 

CONSTRUCTION. 

ambiguity  or  uncertainty  in  contract,  168. 
and  acceptance.    See  tit.  Construction  and  acceptance, 
contract  and  bond  executed  at  same  time,   167. 
dependent  and  independent  promises,  172. 
explained  by  circumstances,  173. 

given  by  state  courts  as  to  preferential  statutory  claims,  546,  note, 
independent  and  dependent  promises,  172. 
joint  and  several  contracts,  172. 

of   California   statute    giving   mechanic's   lien.      See    tit.  California 
statute. 

as  to,  generally,  20. 
of  claim  of  lien.    See  tit.  Claim  of  lien. 

as  to,  generally,  305. 

but  one  rule  for  all  claimants,  307.  . 

general  rule  for  determination  of  sufficiency  of  claim,  308. 

liberal  construction,  305. 

of  notice  to  owner,  305,  note. 

statute  to  be  strictly  pursued,  306,  note. 

strict  construction  whenv  307. 

substantial  compliance,  305. 
of  contract.    See  tits.  Building  contract;  Contract. 

as  to  whether  work  is  extra  work,  191,  note. 

containing  clauses  for  deviations,  179. 
of  contractor's  bond,  558. 
of  findings. 

as  to  completion  of  building,  738,  note. 

general  principles  of,  738,  note. 
of  mechanic's-lien  statutes. 

as  to  extent  of  the  lien,  29. 

as  to  right  to  perfect  lien,  liberally  construed,  29. 

as  to  the  remedial  provisions,  30. 

conflict  of  principles  manifesting  themselves,  22,  note. 

conflicting  authorities,  21. 


GENERAL   INDEX,  909 

CONSTRUCTION.     Of  meehanic's-lien  statutes   (continued). 

elements  creating  inchoate  rights,  strictly  construed,  28. 

legislative  intent,  how  arrived  at,  21,  note. 

liberally  construed  as  to  remedial  portion,  22,  note. 

narrow  technical  construction  not  given  when,  26. 

penal  provisions  strictly  construed,  26,  29. 

rules  of  construction,  22,  23. 

scope  of  discussion,  20. 

so  construed  as  to  protect  claimants,  23,  note. 

strictly  construed. 

as  against  purchaser,  22,  note. 

as  to  compliance  by  claimant,  22,  note. 

as  to  existence  of  lien,  22,  note. 

substantial. 

compliance  only  required,  22. 
observance  in  Alaska,  24,  note. 
of  notice. 

of  claim  of  lien,  524. 

of  non-responsibility.     See  tit.  Notice  of  non-responsibility, 
of  penalty,  176. 

of  provision  as  to  essentials  of  validity  of  statutory  original  con- 
tract, 225. 
of  statutory  original  contracts,  176. 
of  warranty,  175. 

of  warranty  of  design  or  plan  under  express  specifications,  175. 
of  water  company  to  supply  water,  178. 

of  written  contract  to  furnish  machinery  at  fixed  price,  177,  note, 
reasonable  stipulations  implied,  174. 
reasonable  time,  175,  note. 

several  contracts  relating  to  same  matters,  168. 
time  of  performance  unspecified,  174. 
uncertainty  in  contract,  168. 
■where  bond  is  given  to  secure  performance  of  building  contract,  168, 

note, 
where  monthly  accounts  are  rendered,  169,  note, 
where  no  time  is  fixed  for  payment,  170. 
where  public  body  contracts  to  provide  material,  174. 
"CONSTRUCTION,  ALTERATION,  ADDITION  TO,  OR  REPAIR." 
as  to,  generally,  120. 
character  of  alteration,  121. 

counters  added  to  a  building  as  fixtures  a  "  repair,"  121. 
distinction  between. 

"  alteration  "  and  "  erection,"  122. 

"alteration"  and  "repair,"  121. 
importance  of  determining  to  which  class  work  belongs,  121. 
partitions  added  to  a  building  as  a  fixture,  a  "  repair,"  121. 


910  GENERAL   INDEX, 

CONSTRUCTION    AND    ACCEPTANCE. 

suliicieut  allegation  of,  in  action  to  foreclose  mechanic's  lien,  623, 
note. 

CONTENTS. 

of  notice  of  claim  of  lien,  524. 

CONTRACT.     See   tits.  Agreement;    Building  contracts;    Contractual 
relation;  "  Non-statutory  original  contract  ";  "  Original  con- 
tract"; "Statutory  original  contract";  Street-work, 
action  to  cancel,  amount  less  than  jurisdictional,  599,  note, 
admissible  to  show  character  of  building,  691. 
agreed  abandonment  of,  164. 
alteration.    See  tit.  Alteration. 

affecting  sureties,  effect  of,  258,  note. 

of,  effect,  258. 
ambiguity  in,  168. 

amendment  of  pleading  showing  modification,  726. 
architects,  169,  note,  171,  note. 
as  evidence. 

in  action  on  contractor's  bond,  690. 

of  completion,  689,  note. 

upon  deviation  or  abandonment,  689,  note. 

with  reference  to  time  of  performance  of  labor,  691. 
as  notice  of  limitation  of  lien,  411. 
auditing  accounts  as  provided  in,  558. 
breach  of.     See  tit.  Breach  of  contract. 

stipulating  as  to  action  for,  551,  note, 
by  man  who  subsequently  marries  owner,  161,  note, 
by  public  body  to  provide  material,  174. 
consideration  for,  164. 

conspiracy  as  to  price.     See  tit.  Conspiracy, 
construction  of.     See  tit.  Construction, 
containing  clauses  for  deviations,  179. 
date  of. 

need  not  be  alleged  in  action  to  foreclose  lien,  619,  note. 

variance  as  to,  effect  of,  718. 
definition  of,  156. 

dependent  and  independent  promises  in,  172. 
entire  and  severable,  169. 

erasures  and  interlineations  in,  163,  note,  689,  note. 
essentials  of,  156. 
explained  by  circumstances,  173. 
express  or  implied. 

amendment  to  show,  726. 

variance   as   to.     See   tit.  Variance. 


ge]s;er-vl  index.  911 

CONTRACT  (continued). 

extra  work  provided  for  in.     See  tit.  Extra  work. 

as  to,  generally,  192. 
false  reference  to  plans  and  specifications,  16.3. 
for  drawing  plans  and  specifications,  156,  note, 
for  four  buildings,  170,  note, 
for  street-work.     See  tit.  Street-work, 
fraud,  effect  on,  162. 
immaterial  issue  when,  741. 
impairing  obligations  of,  as  to,  40. 
in  writing,  194. 

inchoate,  for  street  improvement,  162. 
indefinite,  inadmissible  in  evidence,  691. 
indefiniteness  of,  163. 

independent  and  dependent  promises  in,  172. 
interlineation  altering,  not  avoiding  same,  258,  note, 
invalidity  of,  finding  as  to,  740. 
joint  and  several,  172. 

jury  to  draw  inference  from  facts,  175,  note. 
lien  limited  by. 

as  to,  generally,  409. 

claimants  under  subcontractors,  413. 

contract. 

as  notice,  411. 

of  subcontractor  and  contractor,  412. 

general  interpretation  of  statutory  provisions,  410. 

statutory  provisions  as  to,  410. 
made  with  reference  to  statute,  161. 
materials  furnished  before  filing,  242,  note, 
mistake,  effect  on,  162. 
modification  of,  258,  note. 

must  be  made  with  owner  or  authorized  agent,  530,  note, 
negligence  of,  to  supply  materials,  setting  up,  in  answer,  661. 
no  privity  of,  between  owner  and  subcontractor,  530,  note, 
of  subcontractor  and  contractor  as  affecting  extent  of  lien,  412. 
of  unlicensed  architect,  108. 
parol  evidence  of  performance  of,  693. 
particular  clause,  general  intent,  construction,  169. 
penalty  in,  176. 

performance  of,  contradictory  findings  as  to,  744. 
presumption  of  knowledge  of  valid,  689,  note, 
price.    See  tit.  Contract  price, 
providing  that  owner  should  pay  receipted  bills  as  they  become  due, 

effect  on  surety,  557,  note, 
ratification  of,  164. 
reasonable. 

stipulations,  implied  when,  174. 

time  of  performance  determined  how,  175,  note. 


912  GENERAL   INDEX. 

CONTRACT  (continued). 

repudiation  of  part  of,  with  architect  by  owner,  rights  of  architect, 

590,  note, 
right  of  owner  to  cancel,  470. 

right  to,  not  restricted  by  mechanic's-lien  laws,  37. 
rights  under,  38. 

several,  relating  to  same  matters,  168. 

special,  may  be  introduced  under  common  counts,  689,  690,  note. 
statutory  original.    See  tit.  Statutory  original  contract. 

as  to,  generally,  176. 
stipulating  as  to  action  for  breach  of,  551,  note, 
subcontractors  bound  by,  78. 
time  of  performance  unspecified,  174. 
to  bore  two  thousand  feet  of  well-holes,  171. 
to  furnish  certain  machinery  at  a  fixed  price,  177,  note, 
to  grade  railroad,  172. 
to  timber  tunnel,  171. 
uncertainty  in,  168. 
valid  and  void,  effect,  12. 

valid  or  void,  immaterial  variance  as  to,  712. 
valid  original,  rights  of  siibcontractor  under,  75. 
valid,  what  is,  38. 

variance  between  pleading  and  proof  of,  material,  720. 
void,  effect  upon  contractor,  73. 
void  for  want  of  record,  rights  under,  58. 
warranty  in. 

as  to,  generally,  175. 

of  design  or  plan  under  express  specifications,  175. 
when  not  required  in  writing,  contract  for  extra  work  need  not  be,  194. 
where  bond  is  given  to  secure  performance  of,  168,  note, 
where  monthly  accounts  are  rendered,  169,  note. 

CONTRACT    PRICE. 

alteration  of  contract  as  to,  conspiracy,  206. 

computable,  203. 

evading  statute,  203. 

less  than  one  thousand  dollars,  202. 

premature  payment  of.     See  tit.  Premature  payment. 

under  non-statutory  original  contract. 

need  not  be. 

payable  thirty  days  after  completion,  204. 
retained,  204. 

not  to  be  payable  in  advance,  209. 

payable  in  instalments  or  after  completion,  210. 

payment  of.    See  tits.  Payment;  Statutory  original  contract. 

third  payment  to  contractor,  210. 
withholding  percentage  of.    See  tit.  Twenty-five  per  cent. 

as  to,  generally,  211. 


n 


GENERAL   INDEX.  913 

CONTRACTING. 

directly  with  owner  or  agent,  variance  between  pleading  and  proof, 
material,  720. 

CONTRACTOR. 

agency  of,  variance  as  to,  immaterial  when,  717. 
agreement  not  to  file  lien,  effect,  199,  note,  200. 
allegations  in  complaint  to  bind,  631. 
as  agent  of  owner. 

generally,  631. 

immaterial  variance  as  to,  712. 
as  statutory  agent  of  owner,  529,  note, 
bond  of.     See  tit.  Bond  of  contractor. 

on  public  improvement,  219,  note, 
cannot  make  void  contract  basis  of  recovery,  252. 
cannot  waive  rights  when,  71. 

creditors  of  original,  entitled  to  money  judgment  against  him,  71. 
damages  for  failure  to  perform  contract,  measure  of,  69,  note, 
defect  caused  by  building  extra  story,  69,  note. 
duty. 

to  file  contract  for  record,  71. 

to  pay  all  indebtedness  incurred,  etc.,  70. 

to  pay   owner   amount   of   judgment   in   costs   recovered   by   sub- 
claimants,  70. 
entitled  to  interest  on  claim,  754. 
expulsion  of,  liability  of  owner  on,  494. 
general  rights  of  owner  and  employer  against.     See  tit.  Owner. 

as  to,  generally,  469. 
judgment  impressing  fund  due  to,  owner  without  complaint,  626,  note. 
lien. 

allowed  to,  118,  note. 

not  given  to,  as  such,  by  constitution,  32. 

on  express  or  implied  contract,  252. 
necessary  parties  defendant  in  action  to  foreclose  lien,  606. 
neglect  to  supply  materials  and  proceed  with  work,  setting  up,  in 

answer,  661. 
not  agent  of  owner  to  determine  value  of  materials,  529,  note, 
not  appealing,  objection  to  form  of  judgment  against,  799. 
not  entitled  to  attorneys'  fees  when,  772,  note, 
not  joining  in  an  appeal.    See  tit.  Appeal. 
notice  of  appeal  need  not  be  served  on,  when,  790. 
original.     See  tit.  Original  contractor, 
owner. 

may  set  off  costs  and  interest  against,  when,  769. 

no  liability  to,  when,  488. 

not  entitled  to  damage  for  loss  of  rents  when,  69,  note. 

objecting  to  non-joinder  of,  799. 
Mech.  Liens  —  58 


914  GENERAL   INDEX. 

CONTRACTOR  (continued). 
personal  judgment  against. 

not  adverse  party  when,  787. 

notice  of  appeal,  787. 
priorities  between.     See  tit.  Priorities, 
reqiiirement  to  keep  brick-work  straight  and  plumb,  69. 
right  to  costs  under  void  contract,  769. 
suit  on,  220. 

third  payment  to,  under  statutory  original  contract,  210. 
two  or  more  original.     See  tit.  Original  contractor. 

CONTRACTOR'S  BOND.    See  tit.  Bond  of  contractor. 

CONTRACTOR'S    ORDER. 

in  favor  of  material-man  payable  on  completion  of  building,  destruc- 
tion by  fire,  effect,  196,  note. 

CONTRACTUAL    INDEBTEDNESS.     See  tits.  Contract;   Demand. 

variance  between  pleading  and  proof  as  to,  material,  721. 

CONTRACTUAL    RELATION.     See  tit.  Contract. 
as  to,  generally,  37. 
as  to  lien  where  there  is  none,  254. 
between  owner  and  original  contractor,  12. 
is  matter  of  pleading  and  proof,  310,  note, 
statement  in  claim  of  lien  showing,  328. 
statute  does  not  create,  when,  493. 
with  owner  need  not  be  shown  in  claim  of  lien,  310. 

CONTRADICTORY    FINDINGS.     See  tit.  Findings. 

CONVENIENT    USE    AND    OCCUPATION. 

as  to,  generally,  395. 

construction  of  phrase,  395. 

court  may  exercise  judgment  as  to,  when,  396. 

evidence  as  to  extent  of  land  necessary  for,  673. 

extent  of  territory  necessary,  395,  396. 

finding  as  to  land  necessary  for,  736,  note. 

in  case  of  fair-ground  race-tracks,  396,  note. 

land  necessary  for,  644. 

lien  properly  confined  to  what  land,  396. 

CONVEYANCES. 

on  record  as  eA'idence  of  reputed  ownership,  688,  note. 
priorities  of  liens  under,  449. 


GENERAL   INDEX. 


•J  15 


COOK. 

for    men    employed    in    constructing    improvement,   not    entitled    to 

mechanic's  lien,  91. 
in  mine,  not  entitled  to  meelianic's  lien,  91. 

COOKING. 

for  laborers  employed  upon  work,  no  lien  for,  131. 

COPARTNERS. 

necessary  defendants  in  action  to  foreclose  mechanic's  lien, 
as  to,  generally,  GOG. 
death  of  one  partner,  effect  of,  606. 
wives  of,  not  necessary  parties,  605,  note. 

CORPORATION. 

as  surety  on  contractor's  bond,  5.51,  note. 

can  contract  in  same  manner  as  natural  persons,  158. 

employment  by,  agency,  630. 

foreign,  verification  by  attorney  for.     See  tit.  Verification. 

general  agent  of,  not  entitled  to  lien  when,  119,  note. 

manager  of,  not  entitled  to  lien  when,  119,  note. 

notice  or  knowledge  of  improvement,  rule  does  not  apply.     See  tit. 

Notice  of  non-responsibility, 
superintendent  of,  not  entitled  to  lien  when,  119,  note. 

COST, 

excess  of,  on  abandonment  by  contractor,  liability  of  surety,  569. 

COSTS.    See  tit.  Attorneys'  fees, 
as  to,  generally,  767. 

against  owner  prolonging  litigation,  769. 
and  attorneys'  fees,  as  to,  47. 
apportionment   of,   on   appeal   from   separate   judgments   foreclosing 

mortgage  and  mechanic's  lien,  784,  note, 
attorneys'  fees,  assessment  in,  error,  770,  note, 
contractor  liable  for,  when,  491. 

deposit  of  money  in  court  by  owner  relieves  from  costs,  492,  note. 
in  action. 

against  agent,  setting  up  as  defense  to  foreclosure  of  lien,  664. 
to  foreclose  lien  on  threshing-machine  for  less  than  jurisdictional 
amount,  599,  note, 
of  claim  of  lien  not  dcmandable  on  tender  before  suit,  725,  note, 
of  filing,  preparing,  and  recording  claim  of  lien,  768. 
of  preparing,  filing,  and  recording  claim  of  lien,  768. 
of  recording,  preparing,  and  filing  claim  of  lien,  768. 
provision  as  to,  49. 
recoverable  as  damages,  647,  note. 


916  GENERAL   INDEX. 

COSTS  (continued), 
recovery. 

against  owner  prolonging  litigation,  769. 

by  owner  when,  769. 

of,  from  contractor,  by  owner,  768,  note, 
relation  of  attorneys'  fees  to,  772. 
right  to,  under  void  contract. 

of  contractor,  769. 

of  owner,  769. 
setting  off  costs  and  interest  against  contractor  when,  769. 
statutory  provisions  as  to,  767. 
unnecessary  expenses  on  sale  not,  768,  note, 
withholding  by  owner  after  notice,  768,  note. 

COUNTER. 

added  to  a  building  as  fixture  is  a  "  repair,"  121. 
lien  for  installing,  151,  note. 

COUNTERCLAIM.     See  tit.  Offsets  and  counterclaims, 
of  surety  on  contractor's  bond,  551,  note. 
setting  up. 

as  defense  to  foreclosure  of  lien,  664. 

in  action  to  foreclose  lien,  664. 

COUPLINGS. 

patterns  used  in  manufacture  of,  not  subject  of  mechanic's  lien,  90. 

COURSE    FOR    PRACTITIONERS. 

only  safe,  2. 

COURT.     See  tit.  Jurisdiction. 

may  exercise  judgment  as  to  space  for  convenient  use  when,  396. 
no  jurisdiction  to  foreclose  lien  against  wife  not  made  party,  752, 

note, 
to  determine  issue  as  to  limitation  of  action,  594,  note. 

CREDIT. 

and  offsets,  variance  as  to  deducting,  material,  716. 

as  to  meaning  of,  346. 

extending,  effect  of,  262. 

given,  suit  on  original  contract  when,  596. 

giving,  as  affecting  time  of  filing  lien,  388. 

CREDITORS.     See  tit.  General  creditors. 

all,  need  not  sign  composition  agreement,  582. 
entitled  to  money  judgment  against  original  .contractor,  71. 
not  found  to  be  lien-holders,  no  recourse  against  owner's  pioporty, 
492,  note. 


a 


GENERAL   INDEX.  917 

CEOPS. 

priority  of  farm-laborers  on,  447,  note. 

CROSS-COMPLAINT. 

demurrer  to,  CJ],  note. 

failure  to  serve,  dismissal,  725,  note. 

immaterial  what  name  defendant  gives  his  pleading,  667. 

Betting  up. 

damages  in,  668. 

in  answer  to  foreclosure  of  lien,  667. 

mechanic's  lien  by,  in  mortgage  foreclosure,  667. 

payments  in,  668. 

CROSSCUTS.    See  tit.  Mines  and  mining  claims, 
true  significance  of  word,  127. 

CURRENT    MARKET    PRICE. 

variance  showing  regular  market  price  immaterial,  718. 

DAMAGES. 

allegation  as  to  attorneys'  fees  not  necessary,  647. 

costs  and  expenses  reasonably  necessary  to  conform  work  to  original 

contract,  475,  note, 
evidence  of. 

circumstances  surrounding  execution  of  contract,  695. 

cost  of  new  stairs  not  measure  of,  for  breach,  695,  note. 

defendant's  default,  695. 

difficulty  and  cost  of  work,  695,  note. 

nature  of  services  admissible  in  action  for,  on  breach,  695,  note, 
for  breach,  findings  as  to,  740. 
for  delay  in  performance. 

as  to,  generally,  475. 

exclusion  of  evidence  as  to  damages  for,  475,  note. 

liquidated,  stipulation,  literally  enforced,  475,  note. 

may  be  set  up  in  answer  against  foreclosure  of  lien,  666. 

not  recoverable  where  contract  modified  by  mutual  consent,  475, 
note. 

where   owner   entitled   to,   for,   475. 
for  failure  of  owner  to  permit  claimants  to  occupy  under  leasehold 

interest,  476,  note, 
in    action   for,   for   breach   of   contract,   allegation    of   demand    not 

necessary,  647. 
items  of,  for  failure  to  complete  in  time,  473. 
liability  of  surety  for.     See  tit.  Surety, 
liquidated.     Sec  tit.  Liquidated  damages. 

stipulation  for,  literally  enforced,  475,  note, 
nature  of  concrete-work  unconnected  with  cause  of  action,  605.  nnff. 


918  GENERAL   INDEX. 

DAMAGES  (continued). 

pleading  under  contract  for  liquidated  damages,  647,  note, 
surety,  liability  of,  for.     See  tit.  Surety, 
sustained  by  owner  may  be  set  off  when,  665. 
waiver  of  claim  for,  476,  note. 

DATE. 

not  necessary  to  set  forth  in  claim  of  lien  when,  344. 

of  completion,  finding  as  to,  738. 

"  on  or  about,"  sufficiency  of  allegation,  634. 

on  which  materials  furnished,  allegation  of,  634. 

DAUGHTER. 

of  owner,  as  his  agent,  1.59,  note. 

DAY. 

parts  of,  taken  into  consideration  in  determining  priority  of  lien,  455. 

DEATH, 
of  employer. 

effect  on  laborer's  lien,  105. 

notice  of,  effect  on  employment,  105. 
of  owner,  recovery  against  the  estate,  761. 
of  party  liable,  appeal,  786. 

DEBT. 

allegation  of,  in  action  to  foreclose  mechanic's  lien,  622. 

and  lien  separate,  17,  note. 

and  security,  separate  assignments,  541. 

assignment  of,  necessary,  541. 

must  be  payable  when  suit  commenced,  595. 

relation  of  lien  to,  17. 

title  of  assignee  of  security  and  right  to  enforce,  541. 

DECISION. 

conflict  in,  as  to  whether  lien  on  land  or  structure,  3,  note, 
questions  on  California  statute  raised  in,  3. 

DECHEE.     See  tit.  Judgment. 
as  to,  generally,  749. 
against  original  contractor,  751,  note, 
as  to  validity  of,  on  foreclosure  of  mortgage,  751,  note, 
cannot  be  rendered  for  items  not  set  forth,  750. 
conclusiveness  of,  750,  note. 

court  cannot  render,  against  wife  not  party,  752,  note, 
curing  improper,  by  filing  disclaimer,  750,  note. 


•  GENERAL   INDEX.  919 

DECREE  (continued). 
default. 

against  owner,  756. 

modification  of,  755. 
deficiency  judgment.     See  tit.  Deficiency  judgment, 
doable  judgments.     See  tit.  Judgment. 
effect  of,  on  third  person,  751. 
extent  of  lien  of. 

as  to,  generally,  764. 

effect  of  failure  to  define  extent  of  land,  765. 

land   necessary  to  convenient  use  and   occupation  to  be  directed 
sold,  766. 

necessity  of  designating  property  to  be  sold,  765. 

order  directing  sale  of  entire  building,  765. 

statutory'  provision,  764. 
foreclosing  lien. 

creates  a  judgment  upon  premises,  751,  note. 

of  defendant  setting  up  sufficient  claim,  750,  note, 
in  consolidated  action,  752. 
interest. 

allowed  only  from  date  of  lien  claim,  754,  note. 

contractor  entitled  to,  754. 

in  land  ordered  sold  when,  763. 

may  be  included  in,  753. 

of  subcontractor's  claimants,  charge  against  subcontractor,  755. 

on  claim  from  date  of  filing  complaint,  753,  note. 

on  materials  furnished  from  time  to  time,  754. 

on  quantum  meruit  not  allowed,  753,  note. 

on  unliquidated  demands,  755. 

on  valid  contract,  payment  of  fund  into  court  by  owner,  755. 

payment  into  court  relieves  from,  753,  note,  755. 

plaintiff  not  entitled  to,  prior  to  verdict  or  judgment  when,  755, 
note. 

properly  allowed  on  sum  awarded,  754,  note. 

subclaimants. 

entitled  to,  753,  note. 

in  case  of  unliquidated  claims,  753,  note. 

what  within  the  rule,  materials  furnished  from  time  to  time,  754. 

where  materials  furnished  from  time  to  time,  754. 
kind  of  money  in  which  to  be  satisfied,  752. 
nature   of  foreclosing  lien,  749. 
not  for  more  than  demanded,  75U,  note, 
of  sale  under  prior  mortgage,  762,  763. 
order  of  sale  of  interest  in  laud  made  when,  763. 
personal  judgment.     See  tit.  Judgment, 
prior  mortgage,  of  sale,  763. 


920  GENERAL   INDEX. 

DECREE  (continued). 

questions  of  title  cannot  be  adjudicated,  750,  note. 
recitals  in. 

as  to,  generally,  763. 

foreclosure  of  interest,  763. 

knowledge  as  to  improvement,  764. 

ownership  and  knowledge,  764. 
remitting  portion  of.     See  tit.  Judgment, 
subsequent,  upon  reinstating  claims,  sale,  779,  note, 
title,  questions  of,  cannot  be  adjudicated,  750,  note, 
vacating  for  excusable  neglect,  750,  note. 

DEED. 

of  trust. 

on  canal,  etc.,  priority  of  mechanic's  lien,  456,  note. 

rule  as  to  notice  of  non-responsibility  does  not  apply  to,  442. 
on  sale  under  foreclosure  of  lien,  781. 

DEER    MEAT. 

furnished  to  laborers  in  a  mine,  not  subject  of  lien,  89. 

DEFAULT. 

continuance  of  work  by  contractor  after,  effect,  271. 
judgment.     See  tit.  Default  judgment. 

against  owner,  756. 

modification  of,  755. 
personal  judgment  by  subclaimant  against  subcontractor  on,  760. 
relief  from,  discretion  of  court,  724,  note. 

DEFENSE, 

arising  subsequent  to  assignment,  544. 
failure  of  owner  to  make  valid,  effect  of,  489. 

DEFICIENCY    JUDGMENT. 

as  to,  generally,  761. 

for  gross  amount,  762. 

form  of,  762. 

notice  to  owner  to  withhold  payment,  762. 

validity  of,  not  involved  on  appeal  when,  795. 

DEFINITION.    See  tit.  Words  and  phrases. 

of  actual  completion,  585,  note, 
of  adverse  party,  785. 
of  "  any  such  contract,"  259. 
of  "  any  such  mine,"  122,  note, 
of  architect,  102,  note,  108. 
of  artisan,  102,  note. 


GENERAL   INDEX. 

DEFINITION  (continued), 
of  bestowed,  116. 
of  builder,  102,  note. 
of  building  contract,  157. 
of  building  or  other  improvement,  135. 
of  "  cash,"  346. 
of  "  chutes,"  127. 
of  completion,  265. 
of  composition  agreement,  580. 
of  contract,  156. 
of  contract  for  street-work,  166. 
of  contractor,  54,  72. 
of  contractor's  contract,  165. 
of  "credit,"  346. 
of  crosscuts,  127. 
of  demand,  313. 
of  engineers,  103,  note, 
of  extra  work,  191. 
of  furnished,   88. 
of  "  further  advances,"  460. 
of  "  future  advances,"  549,  note. 
of  improvement,  117,  128,  136,  137,  note,  372,  note, 
of  improves,  128. 
of  "  inclines,"  127. 
of  laborer,  103,  note, 
of  "levels,"  127. 

of  lien,  293. 

of  machinists,  103,  note. 

of  material,  80. 

of  material-man,   80. 

of  mechanics,  102,  note. 

of  mine,  8,. 94,  139,  147. 

of  miner,  103,  note. 

of  mining  claim,  145. 

of  non-statutory  original  contract,  166. 

of  novation,  264. 

of  "  occupied,"  369. 

of  original  contract,  165. 

of  original  contractor,  54. 

of  persons  performing  labor  in  a  mining  claim,  103,  note. 

of  servant,  103,  note. 

of  "shafts,"  127. 

of  statutory  original  contract,  166. 

of  "  stopes,"  127. 

of  structure,  136,  137,  note,  138,  139. 

of  subcontract,  166. 

of  subcontractor,  72,  529,  note. 


92] 


922  GENERAL   INDEX. 

DEFINITION  (continued). 

of  subcontractor's  contract,  165. 

of  terms  used  in  the  mechanic's-lien  law,  135. 

of  "  therewith,"   129. 

of  "  time  given,"   345. 

of  "  trifling  imperfection,"  272. 

of  "  tunnels,"   127. 

of  "  uprises,"  127. 

of  valid  contract,  38. 

of  various  kinds  of  laborers,  100. 

of  workmen,  103,  note. 

DELIVERY-SLIPS. 

admission  of,  as  books  of  original  entry,  799,  note. 

DEMAND. 

against  separate  buildings,  description  in  claim  of  lien,  358. 

against  two  or  more  buildings,  317. 

assigned  liens,  two  or  more  included  in,  315,  note. 

commingling  lienable  and  non-lienable  items  in,  316,  368. 

construction  of,  313,  note. 

definition  of,  313. 

for  the  sum  of  "  $ ,"  315,  note. 

including  two  or  more  assigned  liens  in,  315,  note. 

itemizing.     See  tit.  Itemizing, 
unnecessary,  313,  note,  314,  note. 

made  by  contractor  which  should  have  been  submitted  to  arbitra- 
tion, 696,  note. 

names  required  to  be  stated  in  claim  of.     See  tit.  Names  required 
to  be  stated  in  claim. 

object  of  provision  for,  315. 

on  several  assigned  liens,  315,  note. 

statement  of,  in  claim  of  lien.     See  tit.  Statement. 

sufficient  in  bringing  action,  647,  note. 

DEMURRER.     See  tit.  Pleading  and  procedure. 
as  to,  generally,  651. 
admitting  ownership,  651,  note, 
for  uncertainty  in  claim  of  lien,  652. 
general. 

as  to,  generally,  652. 

for  failure  to  set  forth  plans  and  specifications,  653. 

for  uncertainty  in  allegation  as  to  cessation  of  work,  6.53. 

for  variance  between  claim  as  exhibited  and  body  of  complaint, 
653. 

on  monej'  judgment   and  foreclosure  of  lien,   652. 

to  be  overruled  when,  652,  note. 


GENERAli   INDEX,  923 

DEMURRER  (continued). 

overruling,  on  ground  of  uncertainty  as  to  character  and  extent  of 

extra    work,   798,   note. 
special. 

as  to  allegations  of  materials  furnished,  655,  note, 
for  ambiguity. 

and   uncertainty,   654. 

husband  and  wife  parties  to  contract,  654,  note. 
for  conclusion  of  law,  655. 
for  conflict  between. 

bond  as  exhibited  and  allegations  in  complaint,  655. 
claim  as  exhibited  and  body  of  complaint,  6.")4. 
for  inconsistency'  of  complaint   with  attached   exhibit,  655,  note, 
for  misjoinder  of  parties. 
as  to,  generally,  654. 
party  objecting  not  affected,  654,  note. 
for  uncertainty. 

as  to,  generally,  654,  655,  note, 
insufficient  when,  654,  note, 
waiver  of  uncertainty  in  complaint  by  failure  to  file.  654,  note, 
to  cross-complaint,  651,  note. 

to  second  cause  of  action  not  considered  on  ap2:)eal  when,  652,  note, 
waiver  by  failure  to,  651,  note. 

DENIALS. 

on  information  and  belief.     See  tit.  Answer. 

DEPOSIT.     See  tit.  Payment  into  court, 
by  owner  with  county  clerk,  491,  note. 
duty  of  owner  to  make,  of  money  in  court,  492,  note, 
effect  on  costs  and  interest,  492,  note, 
fund  not,  injunction  granted  when,  592. 
of  money  in  court. 

as  to,  generally,  729. 

action  by  owner  to  bring  in  all  parties  and,  590,  note, 
payment  of  balance  of  fund,  729. 

DESCRIPTION     OF     PROPERTY     TO     BE     CHARGED.      See    tit. 
Claim  of  lien, 
amendment  as  to,  727. 
construction  of,  353. 

evidence  to  determine  sufficiency  of,  673. 
field-notes  made  by  surveyor,  673. 
immaterial  variance  as  to,  713. 
in  complaint  to  foreclose  mechanic's  lien,  643. 
in  demands  on  separate  buildings, 
as  to,  generally,  358. 


924  GENERAL   INDEX. 

DESCEIPTION  OF  PROPERTY  TO  BE  CHARGED.     In  demands  on 

separate  buildings  (continued). 

consolidating  of  mining  claims,  359. 

effect  of  non-compliance  with  statute,  360. 

grading  and  street  work,  359. 

specific  amount  due,  359. 
Including  too  much  or  too  little. 

as  to,  generally,  356. 

in  case  of  mines  and  mining  claims,  357. 

in  case  of  railroad  or  canal,  357. 

too  little  land,  356. 

too  much  land,  356. 
land  for  convenient  use  and  occupation,  644. 
must  be  set  out  in  claim  of  lien,  638. 
particular,  repugnant  to  general,  effect,  352. 
property  identified  by  name  or  exclusive  character,  354. 
sufficiency  of,  for  identification,  348,  351,  352,  note, 
two  or  more,  358. 
when  sufficient,  351,  note. 

DESTRUCTION    OF    BUILDING, 
before  completion, 
effect  on  lien,  484. 
effect  on  orders  on  owner's  mortgagee,  486. 

DETAILED    DRAWINGS. 

referred  to  in  memorandum  of  contract,  241. 

"  DEVELOPING."     See  tit.  Mines  and  mining  claims. 

DEVELOPMENT    WORK. 

ordinary  lease  for,  right  to  create  mechanic's  lien,  422,  note. 

DEVIATIONS. 

from  contract,  provisions  for,  construction  of,  179. 

from  specifications  does  not  discharge  sureties  when,  565,  note. 

DIRECT    LIEN. 

in  Colorado,  12,  note, 
in  Hawaii,  11,  note. 

DISABILITY. 

persons  under,  creation  of  right  to  mechanic's  lien  by,  415,  note. 

DISCLAIMER. 

curing  improper  judgment  by  filing,  750,  note. 


GENERAL   INDEX.  925 

DISMISSAL. 

fictitious  defendants,  725,  note. 

for  failure  to  serve  cross-complaint,  725,  note. 

of  architect,  effect  on  provision  for  certificate,  189. 

on  transcript  failing  to  show  motion  or  order,  792,  note. 

DISCRETION    OF    COURT. 

in  granting  relief  from  default.     See  tit.  Default, 
as  to,  generally,  724,  note. 

DISTINCTION. 

between. 

claim  of  lien,  and  notice  of  claim  to  owner,  292. 

notice  to  owner  and  claim  of  lien,  504. 

original  contractor  and  material-man,  62. 

sales  of  personalty  and  agreements  for  work  and  labor,  61,  note. 

voluntary  grantor  and  compensated  surety,  551,  note. 

DISTRIBUTION. 

of  fund,  order  of  priority  among  claimants,  462,  note, 
void  order  of  sale  directing,  778,  note. 

DOUBLE    LIABILITY. 

as  to  where  will  be  imposed,  42,  note. 

DRAWING    PLANS.     See  tit.  Architect. 
lien   for,   120,  note. 

DRAWINGS    AND    SPECIFICATIONS. 

signing,  228,  note. 

"DRAWINGS    HERETO    ANNEXED." 

meaning  of,  when  used  in  memorandum  of  contract,  240. 

DRIFTING.    See  tit.  Mines  and  mining  claims. 
as  to,  generally,  126. 
running  a  tunnel,  127. 

DUTY. 

to  file  statutory  original   contract,  upon  whom   cast,  230. 

ELECTRIC    PLANT. 

niMtprinl-innn  jilncing  in  situ.  Hen,  82. 

EMBANKMENT. 

evidence  as  to  shrinkage  of,  675,  note. 


926  GENERAL    INDEX. 

EMPLOYER.     See  tits.  Owner;   Owner,  employer,  or  person  causing 
improvement. 

agency  of,  not  presumed,  795. 
knowledge. 

of  lack  of  authority  of,  as  waiver  of  lien,  575. 

that  incurred  indebtedness  on  own  responsibility,  679. 
mistake  in  christian  name  of,  in  statement  of  claim  of  lien.  .327.  note, 
name  of,  in  claim  of  lien.     See  tit.  Names  required  to  be  stated  in 

claim, 
necessary  parties  defendant  in  action  to  foreclose  mechanic's  lien, 

606. 
notice  to.    See  tit.  Owner,  employer,  or  person  causing  improvement, 
of  material-man  preparing  the  material  not  a  subcontractor,  74. 
two  or  more,  statement  of  names  in  claim,  330. 

EMPLOYMENT. 

allegation  of,  in  action  to  foreclose  mechanic's  lien,  634. 
death  of  owner,  634. 

ENGINEER.     See  tits.  Chief  engineer;   Laborers. 
certificate  of  completion  of  work,  191,  note, 
conclusiveness  of  estimate  of,  as  to  additional  earth  removed,  683, 

not  specifically  provided  for  in  California  statute,  103,  note.(\l ''-^v^  I  1/ 0  J 
written  order  where,  may  direct  additions  to  work,  194,  note.    ^ 

EQUITABLE    LIEN. 

none  on  property  for  value  of  improvement  when,  157,  note. 

EQUITABLE    OWNERSHIP. 

mistake  as  to,  in  claim  of  lien,  effect,  320. 

ERROR. 

in  claim  of  lien.     See  tit.  Claim  of  lien. 

in  date  of  cessation  from  labor  upon  abandonment  by  contractor, 

382. 
in  description  of  property  in  memorandum  of  contract,  237,  note, 
in  statement  of  demand,  effect  of,  312,  note. 
in  verification  of  claim  of  lien,  effect  of,  364. 
of  law,  specification  of  particular,   on  which  appellant   relies,   724, 

note. 

ESTATES    OR    INTERESTS. 

bound  by  mechanic's  lien.     See  tit.  Limitations  on  liens, 
priority  between  mechanics'  liens  and,  447. 
recovery  against,  on  death  of  owner,  761. 


a 


GENERAL   INDEX.  927 

ESTIMATE. 

as  to,  generally,  185. 

alterations,  value  to  be  made  by  architect,  184,  note. 

approval  of,  18.5,  note. 

assignability  of,  185,  note. 

by  members  of  board  of  trustees,  185,  note. 

condition  precedent  to  recovery  when,  195. 

of  work,  impeaching  witness  as  to,  683,  note. 

ESTOPPEL.     See  tit.  Limitations  on  liens. 

agreement  with  lessee  or  conditional  purchaser  regarding  improve- 
ments, 438,  note, 
arbitration  as,  195. 
as  evidence.     See  tit.  Evidence, 
as  to  attorneys'  fees,  725. 
as  to  extra  work,  194. 

by  deed  or  matter  of  record  must  be  pleaded  to  be  availed  of,  624. 
by  stipulation,  724,  note, 
findings  as  to,  741. 

in  absence  of  principle  of,  liability,  195. 
in   action   to   foreclose  mechanic's   lien,   603. 
in  pais,  429. 

lessee  in  possession  making  improvements,  435. 

none,  of  purchaser  of  property  of  estate  assuming  debts,  700,  note. 
notice  of  non-responsibility. 

failure  to  give.     See  tit.  Notice  of  non-responsibility. 

not  required  to  avoid,  when.    See  tit.  Notice  of  non-responsibility, 
notice  or  knowledge  of  improvement  sufficient  to  raise,  434. 
of  contractor  on  bond,  699. 

to  question  validity  of  statutory  original  contract,  226. 
vendee  in  possession  making  improvements,  438. 

EVADING    STATUTE. 

by  failing  to  express  contract  price,  203. 

EVASIVE    DENIALS.     See  tit.  Answer. 

EVIDENCE. 

as  to,  generally,  670. 
admission. 

as  to  correctness  of  survey,  672,  note. 

cannot  remedy  defects,  671,  note. 

in  pleading  supports  finding,  672. 

of  default  of  contractor,  672. 
as  to  adjustment  of  wages,  672,  note. 
as  to  fixtures,  674. 
as  to  quality  of  material  furnished,  701,  note. 


928  GENERAL   INDEX, 

EVIDENCE  (continued). 

as  to  sufficiency  of  description  of  property,  673. 
as  to  value  of  attorneys'  fees  admissible,  673. 
burden  of  proof.     See  tit.  Burden  of  proof. 

as  to,  generally,  680. 
certificate  as. 

architects,  proof  given  without  sufficient  investigation,  684,  note, 
as  evidence  of  time  of  completion  of  building,  684. 
conclusiveness  of  certificate, 
as  to,  generally,  683. 
as  to  work,  683,  note, 
generally,  682. 

of  chief  engineer  of  railroad,  684,  note, 
of  engineer's  estimate,  conclusiveness  of,  683,  note, 
where  architect  makes  oral  declaration,  683. 
city  charter  admissible  in,  671. 
claim  of  lien  as. 

as  to,  generally,  686,  688. 

auditor's  certificate  of  recording,  687,  note. 

certified  copy  of  notice  and  proof  of  record,  687,  note. 

claim  and  record  do  not  prove  themselves,  687,  note. 

merely  filing  indorsement  of  date  and  page  of  record,  evidence  of, 

nothing,  687,  note, 
original  claim  is  competent  evidence,  687,  note, 
recorder's  indorsement  of  filing,  687. 
conflict  of,  new  trial  on  appeal.     See  tit.  New  trial, 
contract  as. 

erased  portions  of,  effect  on,  689,  note, 
in  action  on  contractor's  bond,  690. 
of  completion,  689,  note. 

upon  deviation,  abandonment,  etc.,  689,  note, 
with  reference  to  time  of  performance  of  labor,  691. 
estoppel  as.     See  tit.  Estoppel. 

as  to  character  of  material  as  personalty,  697,  note. 

general  rule,  697. 

judgment,  697. 

of  contractors  on  bond,  699. 

of  owner. 

as  to,  generally,  698. 
by  acts  of  reputed  owner,  699. 
surety  not,  to  foreclose  lien,  699. 
failure  to  object  to,  672,  note, 
general  rule  as  to  exclusion  of,  671. 
held  insufficient,   672. 
immaterial,  as  to  partnership,  671,  note. 

in  contract  for  liquidated  damages  against  Sureties,  558,  note, 
in  suit  on  quantum  meruit,  690,  note. 


GENERAL   INDEX.  929 

EVIDENCE   (continued). 

inadmissibility  of  indefinite  contract  as,  691. 
judicial  notice.     See  tit.  Judicial  notice. 

as  to,  generally,  674. 

as  to  computation,  67.5. 

as  to  incorporation   of  cities,  675. 

as  to  mining  instrumentalities,  67.5. 
misrepresentations  of  owner  admissible  in,  672, 
of  abandonment  of  modification,  691,  note. 
of  acceptance  of  performance,  696. 

of  admission  by  purchaser  of  use  of  material,  701,  note. 
of  agency. 

as  to,  generally,  534,  note,  677. 

knowledge. 

of  lack  of  agency,  679. 

that  employer  incurred   indebtedness  on   his  own  account,  679. 

overcoming  presumption  of  knowledge,  678. 

presumption,  677. 

proof  of  knowledge  of  owner,  680. 

special  statutory  provision,  677. 

where  foreign  corporation  owns  mines,  678. 
of  benefit  conferred,  696. 
of  books  of  account,  674. 
of  completion  of  building,  685. 
of  contract. 

as  to  time  of  performance  of  labor,  691. 

indefinite,  inadmissible,  691. 

to  show  character  of  building,  691. 
of  damages.    See  tit.  Damages. 

circumstances    surrounding    execution    of    contract,    defendant    in 
default,  695. 

liquidated,  provided  for,  not  warrant  recovery  when,  695. 

of  circumstances  surrounding  execution   of  contract,   tor  purpose 
of  estimating,  695,  note. 

of  cost  of  new  staircase  not  measure  for  breach,  695,  note 

of  nature  of  services  in  action  for,  for  breach,  695^ote. 
of  demand  made  by  contractor,  696,  note. 
of  difficulties  and  cost  of  work,  695,  note, 
of  extent  of  land  for  convenient  use  and  occupation,  073. 
of  extra  work,  191,  note,  689. 
of  field-notes  of  surveyor,  673. 
•     of  forfeiture,  700 
of  fraud,   700. 

of  fraudulent  representation,  701. 
of  intention  of  parties  in  annexing  fixtures,  674. 
of  liability  in  case  of  failure  to  perform  or  abandouinont.  096. 
Mech.  Liens  —  59 


5^0 


930  GENERAL    INDEX. 

EVIDENCE  (continued). 
of  malperformance  of  work, 
as  to,  generally,  694. 
of   contract   for   liquidated   damages   does    not    warrant   recovery 

when,  695. 
testimony. 

of  architects,   694. 
of  carpenters,  694. 
of  contractor  in  rebuttal,  694,  note, 
of  money  advanced,  702. 
of  nature  of  concrete-work  unconnected  with  cause  of  action,  695, 

note. 
of  non-completion  of  building,  686. 
of  non-liability  of  tenant  not  admissible  when,  671. 
of  original  contract  to  determine  character  of  building,  686. 
of  parol.     See  "  Parol,"  this  title, 
in  aid   of  false  reference,  691. 
modifications  of  written  contract,  690. 
of  partial  tender  of  performance,  671,  note. 
of  release  of  owner  admissible  against  assignee,  670. 
of  reputed  ownership,  conveyances  on  record  as,  688. 
of  rescission  as  evidence  of  fraud,  700. 
of  shrinkage  of  embankment,  675,  note, 
of  signed  specifications,  692. 
of  special  contract. 
as  to,  generally,  689. 
under  common  counts,  690,  note. 
of  testimony  of  claimant  against  estate  of  decedent,  674. 
of  time-checks  given  by  contractor  to  laborer,  702,  note, 
of  use  of  material  in  building,  701. 
of  validity  of  contract,  689. 
of  value. 

contract  as,  of  extra  work,  705. 
express  contract  for  extra  work,  705. 
market  price  as  evidence  of,  708. 
other  evidence  of  value,  709. 
under  common  counts,  705. 
usual  price  as  evidence  of,  708. 
valid  contract  as  evidence  of,  705. 
void  contract  as  evidence  of,  706. 
of  want  of  notice  of  probate  proceedings,  676. 
parol. 

admissible  to  show  supposed  principal  on  bond  a  surety,  675,  note, 
in  aid  of  false  reference,  691. 
not  admissible. 

for  construction  of  contract,  692. 
to  help  out  claim  of  lien,  688. 
of  abandonment  of  modifications,  691,  note. 


GENERAL   INDEX.  931 

EVIDENCE.     Parol    (continued). 

of  assignment,  675. 

of  modifications  of  written  contract,  690. 

of  performance   of   contract,   693. 

rule  not  applicable  to  mere  memorandum,  692. 

to  explain  meaning  of  words, 
as  to,  generally,  676. 
gross  ton,   676. 
presumption. 

of  knowledge  by  subclaimants  of  valid  contract,  696. 

that  material  furnished  to  be  used  was  used  in  building,  701,  note, 
questions. 

assuming  matters  in  dispute  objectionable,  G76. 

of  fact,  703. 

of  law,  704. 
receipt. 

of  payment  by  note,  677. 

prima  facie,   of  what,   677. 
rejection  of,  as  to  waiver,  685,  note. 
.    statutory. 

as  to,  generally,  686. 

of  completion  of  building,  686. 
void  original  contract. 

admissible  for  what  purpose,  693. 

invalidity,  how  shown,  694. 

EVOLUTION. 

of  (Jalifornia  mechanic's-lien  law,  5. 

EXAMINATION    OF    WITNESS.     See  tits.  Evidence;  Witness, 
questions  assuming  matter  in  dispute,  676. 

EXCESS    OF    COST. 

on  abandonment  by  contractor,  liability  of  surety,  569. 

EXCESSIVE    ATTORNEY'S    FEE.     See   tit.  Attorneys'   fees. 

EXCESSIVE    CLAIM.     See  tit.  Claim  of  lien. 

forfeiture  by,  as  to,  577. 

judgment  for,  not  reversed   on  appeal  when,  802,  note. 

nonsuit  not  granted  for,  734. 

EXECUTION. 

as  to,  generally,  778,  note. 

junior,  application   of  proceeds  of  sale  to,   781. 

on  personal  judgment,  778,  note. 

writ   is  not  an,   780. 


932  GENERAL   INDEX. 

EXECUTOR. 

authority  to  confer  right  to  mechanic's  lien,  415,  note, 
can  make  no  contract  which  would  give  lien  on  mine,  158. 
cannot  make  valid  contract  for  improvement  without  order  of  court, 

158. 
unauthorized  original  contract  by,  effect  of,  158. 

EXHIBIT.     See  tit.  Pleading  and  procedure, 
claim  of  lien  as  an. 

to   complaint,   638. 

unnecessary  statements  in,  640. 
conflict  between,  and  complaint.    See  tit.  Variance. 

as  to,  generally,  654. 
variance  between,  and  body  of  complaint,  653. 

EXPRESS    AGREEMENT, 
as  to  price,  340. 

EXPRESS    CONTRACT. 

pleading  of.     See  tit.  Complaint, 
in  action  to  foreclose  lien,  619. 


EXPRESS    PRICE. 

variance  between  pleading  and  proof  as  to,  immaterial,  722. 

EXPULSION    OF    CONTRACTOR. 

liability  of  owner  on,  494. 

EXTENT    OF    LAND.     See  tit.  Convenient  use  and  occupation. 

EXTENT    OF    LIENS.     See  tit.  Limitation  on  liens, 
construction  as  to,  29. 

EXTINCTION    OF    CONTRACT, 
alteration. 

how  evidenced,  and  effect,  261. 

in  affecting  sureties,  258,  note. 

of  original,  statutory  provisions,  258. 
extending  credits,  262. 

interlineation  altering,  does  not  avoid  same  when,  258,  note, 
modification  of,  258,  note, 
novation.     See  tit.  Novation. 

as  to,  generally,  264. 

fact  that  purchaser  of  estate  property  assumed  debt  for  work,  265. 

where  original  contrac-tor  assigns  whole  contract,  264. 
owner  accepting  performance  of  contract  as  modified,  262. 


1 

! 

4 


GENERAL   INDEX.  933 

EXTINCTION  OF   CONTRACT    (continued). 

payments,  263. 
performance  of  contract, 
as  to,  generally,  265. 
abandonment  of  original  contract. 
as  to,  generally,  288. 

by  contractor,  owner's  liability,  289,  note, 
contractor. 

abandonment  of  contract  by,  owner's  liability,  289,  note, 
substantial  performance  of  undertaking,  289,  note, 
excess  of  cost  on,  liability  of  surety  for,  .569. 
final  payment  not  available  to  lien  claimants,  290,  note. 
intent  to  abandon,  289,  note, 
justification  of  abandonment. 
as  to,  generally,  290. 

if  contractor  has  not  performed  according  to  terms,  290. 
mere  conveyance  of  property  during  progress  of  work,  effect  of, 

291. 
owner  having  proper  claim  for  damages,  effect  of,  291. 
owner's  liability,  289. 
under  valid   contract,   289,  note. 
"  completion,"  meaning  of  term,  as  used  in  provision,  265. 
original  contract  valid,  266. 
original  contract  void, 
as  to,  generally,  266. 
"  completion  "  of  mining  claim,  279. 
continuance  of  work  under  contract  after  default  of  defendant, 

271. 
conveniences,  278. 

erection  of  structure  in  part  only,  279. 
excuses  for  non-performance,  268. 
general  principles,  276. 
general  rule,  conditions,  268. 
payment  as  condition  precedent,  270. 
performance  of  warranty,  271. 

rule  as  to  what  shall  constitute  performance  is  indefinite    277. 
slight  difference  in  value,  278. 
substantial  performance  geiu  rally  required,  274. 
time   of  performance,  267. 
"  trifling  imperfection." 
as  to,  generally,  272. 

meaning  of  term,  as  used  in  provision.  272. 
what  constitutes  a,  273. 
when  no  time  specified,  267. 
statutory   equivalent  of  completion,  for  purposes  of  lien. 
as  to,  generally,  279. 
acceptance  as  waiver,  283. 


934  GENERAL   INDEX. 

EXTINCTION  OF  CONTRACT.     Performance  of  contract.     Statutory 
equivalent  of  completion,  for  purposes  of  lien  (continued). 
as  affected  by  validity  or  invalidity  of  contract, 
generally,  287. 
original  contract  valid,  287. 
original  contract  void,  288. 
cessation  of  labor  for  thirty  days,  statutory  provision, 
as  to,  generally,  284. 
character  of  cessation,  286. 
scope  of  statutory  provision,  285. 
statute  begins  to  run  when,  285. 
character  of  occupation  and  use,  281. 
occupation  and  use,  scope  and  object  of  statutory  provision,  280, 

281. 
owner's  consent  to  abandonment  or  rescission,  283. 
statutory  provisions,  280. 
void  contract,  282. 
where  the  contractor  has  furnished  all  work  and  materials,  266. 
power  of  architect  to  alter  contract,  264. 
premature  payment,  258,  note, 
statutory  original  contract,  259. 
to  what  original  contract  provision  applicable, 
as  to,  generally,  259. 
"  any  such  contract,"  meaning  of  expression,  259. 

EXTINCTION  OF  LIEN.     See   tits.   Forfeiture   of   lien;    Release   of 
lien;  Waiver  of  lien, 
as  to,  generally,  572,  note. 

EXTRA  WORK. 

as  to,  generally,  191. 

allegation  as  to,  must  be  made  in  complaint,  689. 

alterations  as,  193,  note. 

as  to  whether  work  is  under  original  contract  or  is,  192,  note. 

changes  by  oral  agreement  are,  193,  note. 

construction  of  contract  as  to  whether  work  is,  191,  note. 

contract  for. 

in  writing,  194. 

need  not  be  in  writing  when,  194. 
definition  of,  191. 
estoppel.    See  tit.  Estoppel. 
evidence  of,  191,  note. 

oral  agreement,  changes  by,  are,  193,  note, 
provided  for  in  contract,  192. 
provisions  for  arbitration  a's  to,  195. 

setting  aside  arbitration  as  to  amount  due  for,  184,  note, 
verbal  alterations  of  original  contract,  194. 
void  contract,  no  lien  for,  195. 


GENERAL   INDEX.  935 

EXTRAORDINARY  RIGHT. 

mechanics'  liens  regarded  as  an,  in  Oregon,  7,  note. 

EXTRAS. 

cost  of,  in  correcting  imperfections  in  work,  liability  of  surety  on 
bond,  570. 

FACTORS. 

necessary   to   constitute   claimant   an   original    contractor.      See   tit. 
Original  contractor. 

FACTS. 

admitted,  finding  unnecessary,  742. 

misstatement  of,  in  claim  of  lien  does  not  vitiate,  312. 

not  alleged  in  pleadings,  671,  note. 

questions  of,  703. 

FAILURE. 

to  perfect  lien,  relates  back,  451,  note, 
to  perform,  evidence  of  liability  for,  696. 

FAIR-GROUNDS. 

raeclrack  in,  extent  of,  396,  note. 

FALSE. 

claim,  forfeiture  by.    See  tit.  Forfeiture. 

as  to,  generally,  577. 
representation. 

as  to  ownership  of  building,  effect  on  lien,  407. 

by  owner  as  to  completion  of  building,  liability,  500. 
statement  of  claim,  effect  of,  314,  note. 

FARM-LABORERS. 

priority  of  lieu  of,  on  crops,  447,  note. 

FAVORED  LIEN. 

mechanic's,  is  a,  9. 

FEDERAL  COURT. 

foreclosure  of  mechanic's  lien  in,  599. 

FEE. 

attorney's.     See  tit.  Attorneys'  fees. 

liability  of,  for  improvements  by  trespasser,  484. 

subject  to  mechanic's  lien,  417. 

FICTITIOUS  DEFENDANTS. 

dismissal,  725,  note. 


936  •  GENERAL   INDEX, 

FILING. 

claim  of  lien.     See  tit.  Claim  of  lien, 
as  to,  generally,  370. 

after  statutory  period  for  inchoate  right  to  lien  ceases,  371. 
cessation  of  work.     See  tit.  Notice  of  completion  or  cessation  of 

work, 
claim  must  be  filed  under  act  of  1893,  370,  note. 
notice  of  completion.    See  tit.  Notice  of  completion  or  cessation  of 

■work. 
original  contract  void, 
as  to,  generally,  375. 
necessity  of,  375. 
place  of  filing  for  record, 
as  to,  generally,  375. 
in  case  of  railroad,  375. 

removal  of  claim  from  recorder's  office,  375. 
principal  contractor  not  required  to  serve  notice,  371,  note, 
purpose  of  requiring  claims  to  be  filed  within  certain  time, 
as  to,  generally,  372-374. 
in  case  of  void  contract,  374. 
removal  of  claim  from  recorder's  ofl&ce,  375. 
statutory  provisions  as  to,  372. 
time  of. 

as  to,  generally,  376. 
abandonment  of  the  work,  on. 
as  to,  generally,  386. 
abandonment  by  contractor,  387. 
in  case  of  an  actual  abandonment,  387. 
actual  completion,  386. 
agreements  affecting, 
as  to,  generally,  388. 
giving  credit,  388. 

instalments  maturing  during  progress  of  work,  389. 
certificate  of  architect,  386. 
claim  not  filed  in  time  when,  378. 
computation  of. 

as  to,  generally,  378. 

effect  of  "  within,"  as  used  in  statute,  378. 
contractor   cannot   keep    alive    or   revive    right   by    tacking   or 

adding,  377,  note, 
delivery  of  additional  material,  effect  on  right,  377,  note, 
effect  of  superintendent's  certificate  of  completion,  377,  note, 
filing  after  completion,  379. 
first  and  last  day  for  computing  time,  378. 
furnishing  of  additional  articles  by  agreement,  376,  note, 
grading,  etc.    See  tits.  Grading;  Street  improvement, 
as  to,  generally,  392. 


I 


generatj  index.  937 

FILING.     Claim  of  lien.     Time  of  (continued). 

in  case  of  mines  and  mining  claims.     See  tit.  Mines  and  mining 
claims, 
as  to,  generallj',  391. 

where  claimant  furnishes  materials,  392. 
where  claimant  performs  labor,  392. 
subsequent  contract  for  material,  effect  of,  377,  note, 
substantial  completion,  386. 
thirty  days'  cessation  from  labor, 
as  to  effect  on  right,  387. 
default  of  building  contractor  or  owner  affecting  running  of 

statute  of  limitations,  387. 
subclaimants  to  file  when,  388. 
under  act  of  March  27,  1897,  370,  note, 
under  void  contract, 
as  to,  generally,  389. 

burden  of  determining  whether  contract  valid,  390. 
where  statutory  original  contract  void,  390. 
when  not  fixed  by  statute,  378. 

where  extra  work  is  done  or  material  furnished,  376,  note, 
time  when  statute  of  limitations  begins  to  run  against,  370,  note, 
duty  to  file,  on  whom  cast,  230. 
necessity  and  object  of  filing,  230. 
non  statutory  original  contract  need  not  be  filed,  204. 
object  of. 

as  to,  generally,  230. 
statute  requiring,  231. 
of  statutory  original  contract,  227. 
original  contract,  provision  requiring,  valid,  38. 

plans  and  specifications  referred  to  as  part  of  contract  to  be  filed,  232. 
reference  to  matters  dehors  the  contract,  eft'ect  of,  232. 
sufiicient  filing,  what  constitutes,  234. 
whole  contract  must  be  filed,  232. 

FINAL  CERTIFICATE.    See  tit.  Certificate. 

of  architei-t.  owner  cannot  waive,  '>'-,  note. 

FINAL  INSTALMENT.    See  tit.  Premature  payments, 
as  to,  generally,  567. 

FINAL  PAYMENT. 

fund  for,  only  money  available  to  lien  claims,  472. 
twenty-five  per  cent  set  aside  for,  473. 

FINDINGS. 

as  to,  generally,  736,  795. 

as  to  admitted  facts  must  be  disregarded,  742. 


938  GENERAL   INDEX. 

FINDINGS  (continued). 

as  to  completion  of  building,  738,  note. 

as  to  extent  of  land  necessary  for  convenient  use  and  occupation, 

736,  note, 
as  to,  upon  mistake  in  claim,  736,  note, 
attack  on,  not  allowed  when,  748. 

conflicting  evidence  as  to,  not  reviewed  on  appeal,  796,  note, 
construction  of,  738,  note, 
contradictory  finding. 

as  to,  general]}',  743. 

as  to  party  furnishing  material,  743. 

as  to  performance  of  contract,  744. 
court  approving  and  adopting  those  of  jury,  738,  note, 
defective  findings,  739. 

failure  to  find  upon  material  issue,  error,  737,  note, 
immaterial  issues. 

as  to,  generally,  741, 

amount  due  when  nothing  is  alleged  to  be  due,  741. 

another  action  pending  when  none  has  been  sot  up,  741. 

as  to  facts  admitted,  742. 

completion  of  work,  where  not  raised  by  the  pleading,  742. 

contract  out  of  issues,  741. 

performance,  when  not  put  in  issue,  742. 
in  consolidated  action,  744. 
in  equity  case,  not  disturbed  when,  796,  note. 
in  terms,  that  persons  were  not  original  contractors,  797,  note, 
issues  to  be  found  upon. 

as  to,  generally,  737. 

failure  to  find  upon  material  issues  error,  737,  note. 

fixtures. 

as  appurtenances,  737,  note, 
as  part  of  building,  737,  note. 

liens  paid  by  owner,  737. 

money  due,  738. 

notice  of  action,  737. 

performance,  738. 

priorities,  737. 

promise  to  pay,  738. 

proper  defense,  737. 

use  of  materials,  737. 

value,  738. 

void  contract,  738. 
may  not  be  attacked  when,  748. 
not  disturbed. 

as  to  terms  of  composition  agreement,  796,  note. 

where  evidence  reasonably  supports,  796,  .note. 


GENERAL   INDEX.  939 

FINDINGS  (continued). 
Of  agency. 

as  to  request  of  owner,  747. 

as  to  void  contract,  747. 

insufficient  when,  746. 

what  sufficient  to  support,  746. 
of  facts  and  conclusions  of  law. 

as  to,  generally,  745. 

as  to  property  being  operated  as  one  mine,  745. 

as  to  void  contract,  745. 
on  appeal  from  order  denying  motion  for  new  trial,  798. 
on  consolidation  of  actions,  728. 
on  main  material  fact,  796,  note, 
presumption. 

in  favor  of,  on  appeal,  736,  note. 

on  appeal,  as  to,  793. 
provisions  of  code  as  to,  736,  note, 
referees',  not  disturbed  when,  796,  note, 
segregation  of  items  of  contract  price,  743. 
substantial  conflict  in  evidence,  not  disturbed,  796,  note, 
sufficient  to  support  judgment. 

as  to,  generally,  746. 

as  to  payment,  746. 
that  building  constructed  upon  leased  ground  by  tenants,  798,  note, 
that  claim  of  lien  filed  by  material-man  was  in  due  form,  797,  note, 
that  materials  of  a  specified  value  were  furnished,  792,  note. 
to  cover  entire  issue. 

as  to,  generally,  738. 

abandonment  of,  as  to,  739. 

completion  of  building,  739. 

conditional  compensation,  739. 

date  of  completion,  738. 

prevention  of  performance,  738. 
ultimate  facts  to  be  found. 

as  to,  generally,  739. 

completion,  740. 

estoppel,  741. 

invalidity  of  contract,  740. 

issue  of  damages  for  breach,  740. 

substantial  performance,  740. 
upon  consolidation,  736,  note. 

verdict  not  set  out  as  being  against  evidence,  797,  note, 
when  objections  to,  not  considered  on  appeal. 

as  to,  generally,  795. 

from  order  denying  new  trial,  795,  note. 

rule  applied,  795,  note. 

to  character  of  the  work,  795,  note. 


940  GENERAL   INDEX. 

riNDINGS.   When  objections  to,  not  considered  on  appeal  (continued), 
to  date  of  completion,  795,  note. 

to  failure  of  contractor  to  complete  building  within  time,  795,  note, 
to  finding. 

as  to  alteration  of  contract,  796,  note. 

as  to  contract,  796,  note. 

as  to  extra  work,  796,  note. 

as  to  losses,  796,  note. 

as  to  value  of  extra  work,  796,  note. 

based  on  conflicting  evidence,  796,  note. 

that  work  of  trifling  character  was  done  after  date  of  comple- 
tion, 796,  note. 

value  and  amount  of  money  in  hands  of  owner,  796,  note, 
to  paj'ment  of  money  due,  795,  note, 
who  cannot  attack,  798. 

FINDINGS    OF    FACT.     See  tit.  Findings. 

FIRST  MECHANICS-LIEN  ACT. 

as  to,  4,  note. 

FIXTURES. 

as  to,  generally,  148. 

become  property  of  owner  of  realty  when,  429,  note. 

character  of  building  as  determined,  148. 

cover  for  stovepipe-flue  not  a,  94,  note. 

evidence  as  to. 

intention  of  party,  674. 

permanency,  674,  note, 
findings  as  to,  737,  note, 
furnace  becomes  a,  when,  94,  note, 
intentions  of  parties  determines,  149,  note, 
material-man's  lien  for,  94. 
principles  of  determination  of,  149. 
question  of  fact  relating  to,  148. 
work  upon. 

deemed  to  be  done  upon  the  property,  151. 

in  a  mine,  lien  for,  152. 

FORECLOSURE  OF  LIEN.     See  tit.  Remedies. 
against  property  and  fund,  585,  note, 
appeal  from  judgment  on.     See  tit.  Appeal. 
attorneys'  fees  allowed  on.     See  tit.  Attorneys'  fees. 
demurrer.    See  tit.  Demurrer, 
for  labor  on  threshing-machine,  585,  note, 
gist  of,  614,  note. 
lis  pendens.    See  tit.  Lis  pendens. 


I 


generaij  index.  941 

FORECLOSURE  OF  LIEN   (continued). 
manner  of  commencing  action  for. 
as  to,  generally,  ;")99. 
suininons.     See  tit.  Summons, 
as  to,  generally,  600. 

alias  summonses  in  consolidated  action,  600,  note, 
appearance  of  infant,  600,  note, 
publication  of,  600,  note, 
service  of. 

as  to,  generally,  600,  note, 
by  publication,  600,  note. 
on  cross-complnint  unnecessary,  600,  note, 
on  one  spouse,  where  community  property  involved,  600,  note, 
sufficiency  of  publication  of,  600,  note. 
time  of  service  of,  on  foreign  corporation,  600,  note. 
nature  of  action  for,  19,  585. 

personal  judgment  allowed  in  action  for,  584,  note. 
place  of  commencing.    See  tit.  Place. 
questions  of  title  not  adjudicated  in,  750,  note, 
stating  cause  of  action.     See  tit.  Complaint, 
time  of  commencing.    See  tit.  Time. 

FORECLOSURE  OF  MORTGAGE,    See  tit.  Foreclosure  of  lien. 

\  alidity  of  decrcee  on,  751,  note. 

FOREIGN  CORPORATION. 

verification  of  claim  of,  by  attorney,  362,  note. 

FOREMAN. 

iu  charge  of  construction,  not  original  contractor  when,  61. 
in  idle  mine,  not  entitled  to  lien,  128,  note, 
of  laborers  not  allowed  a  lien  when,  119. 

FORFEITURE.    See  tits.  Release  of  lien;  Waiver  of  lien, 
by  false  or  excessive  claim  or  notice, 
as  to,  generally,  577. 
claim  of  lien,  as  to,  generally',  578. 
construction. 

of  code  provision  as  to,  578. 
of  statutory  provision,  578. 
notice  to  owner,  as  to,  generally,  578. 
statutory  provision,  577. 
evidence  of,  700. 

excessive  claim  not  ground  of,  734. 
illustrations  of  rule  as  to. 
as  to,  generally,  579. 
excessive  material,  579. 


9-42  GENERAL   INDEX. 

FORFEITURE.     Illustrations  of  rule  as  to   (continued), 
excessive  price,  579. 

general  rule,  in  absence  of  statutory  provision,  579,  note, 
non-lienable  materials,  579. 

FORM.     See  Index  of  Forms,  preceding  this  Index, 
and  contents  of  notice,  construction,  524. 
of  judgment  for  deficiency,  762. 

FORMALITIES. 

of  assignment  of  claim,  539. 

FRANCHISE. 

lien  on,  under  Washington  statute,  447,  note. 

FRAUD. 

evidence  of,  700. 

fraudulent  representation,  701. 

in  withholding  certificate,  by  engineer,  effect,  188,  note. 

release  of  lien  obtained  by,  580. 

rescission  of  contract  as  evidence  of,  700. 

FRAUDULENT  REPRESENTATIONS.     See  tit.  Fraud. 
evidence  of,  701. 

FREIGHT  CHARGES.     See  tit.  Cartage. 

FUND. 

action  against,  notice  to  contractor,  625. 

action  to  foreclose  lien  on  property  and,  585,  note. 

allegations  of  no  other  claim  upon,  in  complaint  to   foreclose  lien 

against,  643. 
balance  after  satisfaction  of  liens,  rights  of  general  creditors,  547. 
distribution  of.     See  tit.  Distribution  of  fund, 
garnishment  by  creditor.    See  tit.  Garnishment, 
lien  on,  15. 

lien  on,  of  subcontractor  who  has  filed  notice  with  owner,  461,  note, 
objection  against  parties  having  prior  claim  on,  725. 
payment  of  balance  on  deposit  in  court,  729. 
priority  of  lien  upon,  461,  note, 
right  of  owner  to  retain,  470. 

FUNDAMENTAL  IDEA. 

of  the  mechanic's-lien  law  derived  from  maritime  liens,  5,  note. 

FURNACE. 

becomes  a  fixture  and  subject  to  lien  when,  94,  note. 


II 


GENERAL    INDEX.  ^■^'^ 

"  FURTHER  ADVANCES."     See  tit.  Future  advances. 

what  constitutes,  46U. 

FUTURE  ADVANCES.     See  tit.  "  Further  advances." 
mortage  for. 

must  be  properly  made,  460. 

priority  as  between,  and  mechanic's  lien,  459. 

what  constitutes  "  further  advances,"  460. 

FUTURE  REPAIRS. 

may  be  set  up  iu  answer  to  foreclosure  of  lien  when,  665. 

GARNISHMENT.    See  tit.  Attachment, 
as  to,  generally,  507-509. 

by  creditor,  priorities  in  case  of  mechanic's  lien,  461. 
by  general  creditor,  548. 
notice  authorized  by  statute,  509,  note, 
notice  of  claim  of  lien  in  nature  of,  506,  note, 
notice  of,  under  early  statutes,  508,  note, 
subsequent  to  lien,  548. 
under  statute  of  1855,  508,  note. 

GAS-WORKS. 

extent  of  land  subject  to  mechanic's  lien  on,  404. 

GENERAL  AGENT. 

of  corporation  erecting  a  building  performing  no  manual  labor,  no 
lien,  119,  note. 

GENERAL  CREDITORS. 

attachment  or  i)rocess  by,  for  materials,  548. 
balance  of  fund  after  satisfaction  of  lien,  547. 
cannot  attack  findings  when,  798. 
claimants  losing  lien,  rights  of,   ')46. 
foreclosing  lien,  sale  on,  779,  note, 
garnishment  by. 

as  to,  generally,  548. 

subsequent  to  lien,  548. 
judgment  against  owner,  547. 

not  deemed  included  in  an  offer  of  owner  to  pay  amount  due  con- 
tractor, 547. 

GENERAL  MANAGER. 

of  niiiiinfj  conipanv,  who  performs  manual  labor,  no  lien,  120,  note. 
of  trains,  who  performs  manual  labor  iu  other  services,  entitled  to 
lien,  119,  note. 


1)44  GENERAL   INDEX. 

GEOLOGIST. 

not  entitled  to  lien  for  exploring  country  surrouuding  miiu',  123,  note. 

GOOD  FAITH. 

and  open  dealings  of  arbitrators,  183. 

GRADING.    See  tit.  Street-work, 
as  to,  generally,  11.5,  117,  128. 

allegation  in  complaint  to  foreclose  mechanic's  lien  for,  63.5. 
and  street-work  under  the  code  provisions,  147. 
"  improvement." 

in  statute  giving  mechanic's  lien  does  not  apply  to,  392. 

meaning  of,  as  used  in  statute,  128. 
liens  allowed  for,  130. 

meaning  of  "  improves  "  and  "  improvement,"  as  used  in  statute,  128. 
notice  of  non-responsibility  not  required  in  case  of,  441. 
one  of  the  classes  of  work  for  which  lien  given,  115. 
permission. 

of  city  council  when,  130,  note. 

of  superintendent  of  streets,  130. 
relation  of  work  to  structures,  129. 
"  therewith,"  meaning  of,  as  used  in  statute,  129. 
work  not  enforceable  under  section,  128. 
work  of,  lien  for,  95. 

GRANTEE. 

of  contracting  owner,  liability  under  mechanic's  lien,  415,  note. 
of  deed  in  escrow,  interest  subject  to  mechanic's  lion,  417,  note. 

GRANTS. 

priorities  of  liens  under,  449. 

GROSS  AMOUNT. 

judgment  for  deficiency,  762. 

GUARANTY. 

of  contractor's  accounts  by  owner,  not  a  premature  payment,  489. 

GUARDIAN. 

as  owner,  467,  note. 

authority  to  confer  right  to  mechanic's  lien,  415,  note. 

cannot  subject  estate  of  minor  to  mechanic's  lien,  157. 

HARMLESS  ERROR.    See  tit.  Appeal. 

HAWAII. 

mechauic's-lien  law  of,  6,  8,  11,  13. 


GENERAL   INDEX.  945 

HEARING. 

on  appeal,  in  consolidated  cases,  802. 

"HIS  CONTRACT." 

in  statoiueiit  of  claim,  refers  to  claimant,  338. 

HISTORY. 

of  doctrine  of  notice  to  owner  or  employer,  502. 
of  mechanic's-lien  law. 

as  to,  gcnerall}^  1,  4. 

first  mechanic's-lien  act,  4,  note. 

unknown  to  the  common  law,  4. 

HOMESTEAD. 

declaration  of,  does  not  defeat  right  to  mechanic's  lien,  455. 

joint  action  of  husband  and   wife  not  necessary  to  create  lien   on, 

45,  note, 
mechanic's  lien  on,  45,  415,  note, 
priority  of  mechanics'  liens,  454. 
where  not  siibiect  to  mechanics'  liens,  45. 

HUSBAND.    See  tit.  Husband  and  wife. 

failure  to  plead  facts  in  complaint  to  foreclose  lien  to  bind  interests 
of,  630,  note. 

HUSBAND  AND  WIFE. 

as   to.  generally.  712. 

as  parties  to  building  contract,  community  property,  161,  note, 
joint  action  not  necessary  to  create  lien  on  homestead,  45,  note, 
statement  of  interests  of,  in  claim  of  lien,  320,  note, 
variance  between  allegation  of  complaint  and  proof  as  to.     See  tit. 
Variance. 

ICE-BOX. 

l)ecomes  part  of  a  building,  entitling  to  lien,  when,  151. 
lien  for  installing,  151,  note. 

ICE  PLANT. 

material-man  placing,  in  situ,  lien,  82. 

ICE-ROOM. 

luiilt   in  and  attached  to  a  warehouse,  lien  upon,  140, 

IDAHO. 

mechanic's-lien  law  of,  6,  13. 

IMMATERIAL  VARIANCE.    See  tit.  Variance, 
as  to  r-laim  and  proof,  717-719. 
Mech.  Liens  —  60 


946  GENERAL   INDEX. 

"  IMPAIRING  OBLIGATIONS  OF  CONTRACTS." 

as  to,  generally,  40. 

IMPEACHING  RECORD. 

publication  of  notice  of  sale,  778,  note. 

IMPLICATIONS    OF    LAW. 

need  not  be  stated  in  claim  of  lien,  309,  335,  note. 

IMPLIED  AGREEMENT.    See  tit.  Implied  contract. 
as  to  price,  340. 

IMPLIED  CONTRACT.    See  tit.  Non-statutory  original  contract. 

action  on,  evidence,  705. 

as  to  price.  202. 

for  labor  and  materials,  as  to,  202. 

original.    See  tit.  Original  contract. 

variance  showing  express  contract  immaterial,  718. 

IMPROPER  ALLEGATIONS.     See  tits.  Answer;  Complaint. 

foreclosure  of  mortgage,  setting  up  action  to,  in  answer,  661,  note, 

663,  667. 
stricken  out  of  answer,  661,  note. 

IMPROVEMENT. 

definition  of,  117. 
distinct  from  the  land,  319,  note. 

meaning  of,  as  used  in  mechanic'slien  law,  136,  137,  note, 
notice  or  knowledge  of,  raises  estoppel  when,  434. 
refers  to  object,  117. 

sale  and  removal  of,  constitutionality  of  provision  of  statute  for, 
cannot  be  raised  for  first  time  on  appeal,  800,  note. 

INCHOATE. 

contract  for  street  improvement,  165. 
right. 

assignment  of,  538. 

elements  creating,  strictly  construed,  28. 

to  lien,  ceases  after  period  for  filing,  371. 

to  mechanic's  lien,  construction,  29. 
statutory  original  contract  is,  when,  227. 

INCLINES.     See  tit.  Mines  and  mining  claims. 
Irne  significance  of  word,  127. 

INDEBTEDNESS.     See  tit.  Demand. 


GENERAL   INDEX.  947 

INDEFINITE  CONTRACT. 

variance  bttwcen  pleading  and  proof  as  to,  material,  720. 

INDEFINITENESS. 

of  contract,  163. 

INFANT. 

as  owner,  467,  note. 

where  parties  to  an  action  to  foreclose  lien  may  appear  by  general 
guardian,  610. 

INFERENTIAL  STATEMENTS.     See  tit.  Statement, 
as  to,  generally,  328. 

INJUNCTION, 
against  sale. 

of  property  on  foreclosure  of  lien,  where  wife  not  made  party,  592, 

note, 
under  other  process  to  protect  mechanic's  lien,  592,  note, 
amendment  affecting,  726,  note, 
fund  not  deposited  in  court,  592. 
in  action  to  foreclose  lien,  592. 

INSOLVENCY. 

assignment  of  claim  in  case  of,  545. 

INSTALMENT. 

contract  of  owner  to  pay  in,  liability  for  breach  of,  492,  note, 
maturing  during  progress  of  work,  effect  on  time  of  filing  claim,  389. 
non-payment  of,  liability  of  owner  for,  470. 

INSTANTANEOUS  SEIZIN. 

as  to  doctrine  of,  46,  note. 

INSTRUCTIONS.    See  tit.  Trial  by  jury. 

INTENT  TO  ENFORCE  A  LIEN. 

need  not  be  present  when  materials  furnished,  18,  note. 

INTEREST. 

after  maturity,  variance  as  to,  718. 

allowed  on  sum  awarded,  754,  note. 

allowed  only  from  date  of  lien  claim,  754,  note. 

as  damage,  and  action  on  contractor's  bond,  569,  note. 

as  to,  on  foreclosure  of  lien,  753. 

bound. 

by  estoppel,  415,  note. 

by  mechanics'  liens.    See  tit.  Limitations  on  liens. 


f 


948  GENERAL  INDEX. 

INTEREST    (continued), 
contractor. 

entitled  to,  754. 

liable  for,  when,  491. 
deposit  in  court  by  owner,  relieves  from,  492,  note, 
in  land.    See  tit.  Land, 
in  property,  uncertainty  of,  objection  for,  cannot  be  taken  for  first 

time  on  appeal,  801. 
materials  furnished  from  time  to  time,  on. 

as  to,  generally,  754. 

what  within  the  rule,  754. 
of  subcontractor's  claimant,  charged  against  subcontractor,  755. 
on  claim  from  date  of  filing  complaint,  753,  note, 
on  unliquidated  demand,  755. 
on  valid  contract,  755. 

owner  may  set  off  costs  and,  against  contractor  when,  769. 
properly  allowed  on  sum  awarded,  754,  note, 
relief  from,  by  payment  into  court,  753,  note,  755. 
subclaimants  entitled  to. 

as  to,  generally,  753,  note. 

in  case  of  unliquidated  claims,  753,  note. 

INTERLINEATION. 

in  contract,  as  to  effect  of,  258,  note. 

INTERMEDIATE   INSTALMENTS.    See  tit.  Premature  payments. 

as  to,  generally,  566. 

INTERMEDIATE  LIEN-HOLDERS. 

one  of  the  tests  of  "  original  contractor,"  59. 

INTERVENTION. 

by  claimants  after  suit  commenced,  730,  note. 

effect  of,  729. 

general  principles  of,  729,  note. 

right  of,  730. 

INVALIDITY, 
of  contract. 

as  to,  generally,  251. 

cannot  be  basis  of  recovery  by  contractor,  252. 

classes  affected  by,  251. 

effect  as  between  the  parties,  251. 

finding  as  to,  740. 

intent  of  statute,  251. 
of  original  contract,  how  shown,  694. 
of  statutory  original  contract,  effect  of,  250. 


GENERAL.  INDEX,  949 

IRRIGATION  DISTRICT. 

labor  upon,  for  which  lien  is  given,  114,  note. 

ITEMIZING.     See  tit.  Items  of  account, 
of  statement  of  demand. 

exhibiting  or  itemizing  statement  made  part  of  claim,  314,  note, 
in   case   of  material-men,   former  rule,   314,  note, 
unnecessary,  313. 

ITEMS    OF    ACCOUNT.     See  tit.  Itemizing. 

in  claim  of  lien  of  contract  for  work  and  materials,  342. 
must  be  set  forth  in  order  that  judgment  may  be  rendered  for,  750, 
note. 

JOINDER    OF    CAUSES    OF    ACTION.     See  tit.  Pleading  and  pro- 
cedure, 
actions  that  are  to  be  united  in  one  complaint,  649. 
designating  causes  of  action  separately,  648. 
in  complaint,  648. 
objections  to. 
how  raised,  650. 

must  be  taken  by  answer  or  demurrer,  650,  note, 
reference  of  one  cause  of  action  to  another,  sufficiency  of  pleading, 

649. 
several  mining  claims  involved,  648. 

JOINT    ACTION. 

of  husband  and  wife,  not  necessary  to  lien  on  homestead,  45,  note. 

JOINT    AND    SEVERAL.     See  tit.  Contract. 

JOINT    CONTRACTORS. 

apportionment  between,  523. 

JUDGMENT.     See  tit.  Decree. 

against  owner  by  general  creditors,  547. 

and   costs   in   action  against  agent,  setting  up   as   defense   to  fore- 
closure of  lien,  664. 
as  estoppel.     See  tit.  Evidence. 

cannot  be  rendered  for  items  not  set  forth,  750,  note, 
conclusiveness  of,  750,  note. 

curing  improper,  by  filing  disclaimer,  750,  note, 
decree  foreclosing  lien  creates  a,  upon  premises,  751,  note, 
default  against  owner,  756. 
deficiency.     See  tit.  Deficency  judgment. 
double,  750,  note, 
entry  of,  efifect  on   lien,  576. 


950  GENERAL   INDEX. 

JUDGMENT  (continued), 
extent  of  lien  of,  764. 
finding  sufficient  to  support,  when,  746. 
for  not  more  than  demanded,  750,  note. 
for   proper    amount,    not    reversed    on    appeal    for    excessive    claim 

without  fraud,  802,  note, 
impressing  fund  due  contractor,  owner  without  complaint,  626,  note, 
in  an  action  at  law,  764,  note, 
interest  on.     See  tit.  Interest, 
kind  of  money  in  which  to  be  satisfied,  752. 
manner  of  executing,  779. 
modification  of. 
default,  755. 

on  appeal,  enforcing  lien,  802,  note, 
must  be  against  original  contractor,  751,  note, 
objecting  to,  against  contractor  not  appealing,  799. 
personal.     See  tit.  Personal  judgment. 

plaintiff  not  entitled  to  interest  on,  prior  to  verdict,  755,  note. 
recitals  in,  763. 

recovering  not  more  than  demanded,  750,  note, 
remitting  portion  of,  750,  note, 
right  to  a  money,  577. 
title,  questions  of,  not  adjudicated  in,  750,  note. 

JUDICIAL    NOTICE. 

as  to,  generally,  674. 

as  to  incorporation  of  city,  675. 

as  to  laws  of  nature,  675. 

as  to  mining  instrumentalities,  675. 

as  to  rules  of  mensuration,  675. 

JURISDICTION. 

amount  less  than  jurisdictional  limit,  598. 

costs  in  action  to  foreclose  lien  for  less  than  jurisdictional  amount, 

599,  note. 
of  superior  court  to  render  personal  judgment. 

in  suit  of  foreclosure,  761. 

when,  49. 
superior  court  has,  to  foreclose  lien,  598. 
to  foreclose  mechanic's  lien,  598. 

JURY. 

drawing  inference  from  facts,  175,  note. 

findings  of,  approved  and  adopted  by  court,  738,  note. 

question  of  liability  of  surety  and  the  amount  of  damages. is  for, 

569,  note, 
trial.     See  tit.  Trial. 


f 


I 


GENERAL   INDEX.  951 

JUSTIFICATION, 
of  abandonment,  290. 

KINSHIP. 

between  meehanic's-lien  statutes,  15. 

KNOWLEDGE.     See  tit.  Agency. 

of  improvement  by  owner,  allegation  as  to,  in   action   to  foreclose 

mechanic's  lien,  629. 
of  lack  of  authority  of  employer,  as  to  whether  waiver  of  lien,  575. 
of  owner. 

immaterial  issue  when,  742. 

of  performance  of  work  need  not  be  stated  in  claim  of  lien,  309. 

LABOR.     See  tits.  Labor  for  which  a  lien  is  given;  Laborer;  Mines 
and  mining  claims;  Work. 
"  bestowed,"  meaning  of,  as  used  in  statute,  116. 
claim   for,   performed   by   the   day,    at    agreed    price    amounting   to 

more  than  one  thousand  dollars,  342,  note. 
classes  of. 

for  which  lien  is  given,  115. 
not  mutually  exclusive,  116. 
contract  for,  61. 

contract  to  furnish  other,  62,  note. 

for  which  lien  is  given.     See  tits.  Labor  for  which  a  lien  is  given; 
Object  on  which  labor  must  be  performed. 
"bestowed,"  definition   of,  116. 
clause  of  statute  under  which  falls, 
must  be  fixed,  116. 

mutually  exclusive,  classes  arc  not,  116. 
"  construction,   alteration,  addition   to,   or  repair."     See  tit.  Con- 
struction, alteration,  addition  to,  or  repair, 
alteration,  and  adding  new  part,  122. 
character  of  alteration,  121. 

distinction  between  "  alteration  "  and  "  repair,"  121. 
importance  of  determining  to  which  class  work  belongs,  121. 
definition  of. 

"  improvement,"  117. 
labor  "  bestowed,"  116. 
divisions  of  objects  upon  which  labor  performed, 
as  to,  generally,   115. 
in  grading,   115. 
in  mines,   115. 
upon  structures,  115. 
grading. 

as  to,  generally,  115. 

and  other  work,  generally,  117. 

"  improvement,"  meaning  of,  in  statute,  128. 


I 


952  GENERAL    INDEX. 

LABOR.     For  which  lien  is  given.     Grading   (continued). 
"  improves,"  meaning  of,  in  statute,  128. 
lien. 

allowed  when,  130. 

for  grading  street  in  front  of  road,  129,  note, 
meaning  of  words  "impro\e"   and   "improvement,"  128. 
permission  to  do  work,  130,  note, 
relation   of  work  to   structures,   129. 
structures  and  other  work,  118. 
under  the  California  statute,  128. 
work  not  enforceable  under  section,  128. 
"  improvement,"  definition  of,  117. 
irrigation  district,  as  to,  114,  note, 
labor  for  which  lien  cannot  be  given  in  any  event, 
as  to,  generally,  130. 
book-keeper  in  mine,  91,  note, 
cooking  for  men  employed  on  work,  131. 
geologist  exploring  around  mine,  123,  note, 
laborer  of  material-man,  132. 
preliminary  work,  130. 
teaming  for  material-man,  132. 

testing  legitimate  work  connected  with  improvement,  132. 
watchman  in  mine.     See  tit.  Watchman, 
mines,  second  clause  of  California  statute,  115. 
object   on   which   must   be   performed.     See   tit.  Object   on  which 

labor  must  be  performed, 
one  class  of  work  specified  in  statute,  all  others  impliedly  excluded, 

114,  note, 
statutory  provisions, 
as  to,  generally,  114. 
first  clause  of  California  statute,  114, 
structures,  114. 
structure. 

grading  and  other  work,  118. 
in  mines,  as  to,  generally,  115, 
liens  allowed. 

as  to,  generally,  118. 

for  gas-fitting,  119,  note. 

for  painting,  118. 

for  papering,  118. 

for  plumbing,  118. 

general  manager  of  trains  performing  manual  labor  entitled 

to  lieu,  119. 
to  contractor,   118,  note. 

to  foreman  of  laborers  moving  house,  119,  note, 
to  overseer,  not  performing  manual  labor,  no  lien,  119,  note, 
to  overseer  performing  manual  labor,'  119,  note, 
to  subcontractor,  118,  note. 


GENERAL   INDEX.  953 

LABOR.     For  which  lion  is  given   (continued). 

work   in   mines   and  mining   elain-.s.      See   tit.  Mines   and   mining 
claims, 
as  to  limitations  upon  work  done,  122. 
"  chutes,"  true  significance  of,  127. 
constructing  road,  no  lien  for,  123,  note. 

construction,   alteration,  or  repair  of  mine,   strictly  none,   125. 
"  crosscuts,"  true  significance  of,  127. 

custodian  to  see  mining  property  not  destroyed,  does  not  per- 
form "  work,"  124,  note, 
drifting.     See  tit.  Drifting. 

as  to,  generally,  126. 
geological  expert  exploring  and  examining  surrounding  country 

not  entitled  to  lien,  123,  note. 
"  inclines,"  true  significance  of,  127. 
"  levels,"  true  significance  of,  127. 
liens  allowed  for,  123. 
mining   experts   exploring   surrounding   country   not    entitled    to 

lien,  123,  note, 
"mining  superintendent"   distinguished   from   "superintendent 

of  a  mine,"  124,  note. 
notice   of   non-responsibility.     See   tit.  Notice   of   non-responsi- 
bility, 
as  to,  125. 
professional  services  in  mine,  123,  note, 
running  a  tunnel.    See  tit.  Tunnel. 

as  to,  generally,  127. 
"shafts,"  true  significance  of,  127. 
sharjjening  picks,  lien  allowed  for,  124. 
"  stopes,"  true  significance  of,  127. 

superintending  construction,  lieu  allowed  for,  123,  note, 
tunnel,  work  in,  125. 
watchman  in  idle  mine,  no  lien,  127. 
work  as  a  miner  in  development,  etc.,  125. 
for  which  lien  is  not  given  in  any  event. 
as  to,  generally,  130. 
bookkeeper  in  mine,  91,  note, 
cooking  for  employees  on  work,  131. 
geologist  exploring  around  mine,  123,  note, 
labor  for  material-man,  132. 
preliminary  work,  130. 
teaming  for  material-man,  132. 
watchman  at  mine.     See  tit.  Watchman, 
general  essential  as  to,  86. 

importance  of  fixing  class  under  wliicli  particular  work    falls    116. 
nature  of.     See  tit.  Nature  of  labor, 
as  to,  generally,  7,  note. 


T 


954  GENERAL   INDEX. 

LABOR   (continued). 

object  of.     See  tit.  Object  of  labor. 

object  on    which    must    be    performed.      See    tit.  Object    on    which 

labor  must  be  performed, 
of  material-man,  lien  for,  85. 
on  mining  claim.     See  tit.  Mines  and  mining  claims. 

as  to,  generally,  5. 

destructive,  not  constructive,  7,  note, 
placing  in  situ,  right  to  lien,  56. 
statement  of  price  of,  in  claim,  340. 
various  items  of,  successive  claims  for,  cannot  be  filed,  301. 

LABORER.     See  tit.  Labor. 

constitutional  provision  as  to,  101. 

contract  between,  and  original  owner  is  not  an  "  original  contract," 

16.5. 
death  of  employer. 

effect  of  rights  of,  105. 

notice  of,  effect  of,  generally,  105. 
definition  of  the  various  kinds  of,  102,  103,  note, 
distinction  between,  and  material-man,  93. 

distinguished  from  contractor,  subcontractor,  and  material-man,  101. 
does  not  create  intermediate  lien-holders,  101. 
employment  as  carpenter  at  fixed  rate  per  day,  aggregate  wage  in 

excess  of  one  thousand  dollars,  effect,  104. 
general. 

obligations  of,  105. 

rights  of,  104. 
nature  of  labor  for  which  lien  given,  103. 
not   entitled   to  lien,   liability  of   sureties   on   contractor's   bond   to, 

550,  note, 
of  material-man,  105. 
owner's,  action  to  foreclose  lien  by,  589. 
personal  services  only  contemplated,  102. 
priorities  of,  105. 
public  work,  on,  105. 

LAND. 

affected  by  mechanics  when  building  destroyed  or  removed,  as  to, 

397. 
and  reduction-works,  a  unity,  399,  note, 
description    of,    objection    to,    cannot   be    raised    for    first    time    on 

appeal,  801. 
distinct  objects  on,  lien,  404. 
effect  of  failure  to  define  extent  of,  765. 
held  under. 

agricultural  patent  not  within  statute,  146. 
Spanish  or  Mexican  grant  not  within  statute,  145. 


GENERAL   INDEX.  955 

LAND  (continued). 

interest  in,  when  can  be  ordered  sold,  762. 

"  mining  claim,"  as  to  whether  includes  deeded  land,  145,  note. 

necessary.     See  tit.  Convenient  use  and  occupation. 

for  convenient  use  and  occupation  to  be  ordered  sold,  766. 

to  designate  amount  to  be  sold,  765. 
payment  in,  under  non-statutory  original  contract,  206. 

LANDLORD. 

mechanic's  lien  on  interest  of,  created  by  tenant,  532,  note. 

LAST    PAYMENT. 

thirty-six  days  after  completion,  sufficient  compliance  in  statutory 
original  contract,  213. 

LATENT    EQUITIES. 

effect  on  assignment,  543. 

LAW. 

applicable,  as  to,  generally,  31. 

implications  of,  need  not  be  stated  in  claim  of  lien,  309. 

LEASE. 

secret  agreement  in,  effect  on  mechanic's  lien,  425. 
under  which  lessor  has  no   interest,   interest   of   lessor   not   subject 
to  mechanic's  lien,  420,  note. 

LEASEHOLD    ESTATE. 

mechanic's  lien   attaches  to,  319,  note. 

subject  to  mechanic's  lien,  332,  note. 

surrender  of  tenant  will  not  defeat  lien,  332,  note. 

LEASE-HOLDER'S    INTEREST. 

sale  of,  on  foreclosure  of  lien,  782. 

LEGAL    OWNERSHIP. 

mistake  as  to,  in  claim  of  lien,  effect,  320,  note. 

LEGAL    SERVICES. 

fees  for.     See  tit.  Attorneys'  fees, 
relation  to  action,  775. 

LEGAL    TITLE. 

contract  by  holder  of,  effect,  57. 

LEGISLATURE. 

cannot  extinguish  the  constitutional  mandatory  lien,  202,  note, 
intent  of,  arrived  at  how,  21,  note. 


1)56  GENERAL   INDEX. 

LEGISLATURE  (continued). 

may  forbid  payments  to  contractor  as  against  subelaimants,  37. 
may  prescribe  form  in  which  contracts  shall  be  executed,  37. 
may  require  recording  of  contract  as  condition  of  validity,  37. 

LESSEE. 

contract  by  and  for  benetit  of,  of  a  mine,  bound,  422,  note. 
in  possession. 

making   improvements,   estoppel,  435. 

power  to  bind  estate  by  mechanic's  lien,  419. 
interest  bound  by  mechanic's  lien,  421. 
working  mines  by,  lien  of  persons  performing  labor,  etc.,  43. 

LEVELS.      See  tit.  Mines  and  mining  claims, 
true  significance  of  word,  127. 

LIABILITY. 

of  sureties  on   contractor's  bond  to  laborers  and  material-men   not 
entitled  to  lien,  550,  note. 

LIBERAL    CONSTRUCTION.     See  tit.  Construction. 

LIEN.     See  tits.  Claim  of  lien;  Mechanic's  lien. 

agreement  of  contractor  not  to  file,  2  99,  note. 

allowed  for  work  in  mine,  123. 

amount  that  may  be  recovered  under  valid,  67. 

as  limited  by  contract,  244,  note. 

as  to  lien  on  several  lots,  394,  note. 

as  to  materials  being  such  as  contract  calls  for  to  entitle  to,  247, 
note. 

as  to  validity  of  demands  and  regularity  of,  680,  note. 

attaches  when,  451,  note. 

by  contractor.     See  tit.  Contractors. 

by  laborers  for  work  done.     See  tit.  Laborers. 

by  material-men.     See  tit.  Material-man. 

by  mechanics.     See  tit.  Mechanics. 

by  subcontractor.    See  tit.  Subcontractors. 

cannot  date  back  of  commencement  of  work,  279,  note. 

change  of  theory  as  to  the  base  of  right  to  a,  784,  note. 

claimant's  right  to,  how  determined,  42,  note. 

commences  when  labor  or  materials  began  to  be  furnished,  42,  note. 

constitutional  right  to,  52. 

definition  of,  293. 

destruction  of  building  by  fire  before  completion.     See  tit.  Destruc- 
tion of  building, 
effect    on,    269,    note. 

direct,  in  Colorado,  12,  note. 


GENERAL    IXDEX.  957 

LIEN  (continued). 

extent  of.     See  tit.  Limitation  on  liens. 

on  decree  of  foreclosure. 
as  to,  generally,  764. 
statutory  provision  as  to,  764. 
extinction  of.     See  tit.  Extinction  of  lien, 
failure  to  perfect,  relates  back,  451,  note, 
first  act  giving  a  lien,  4,  note, 
for  constructing  wagon-road  to  mine,  none,  12.3. 
for  inferior  materials  used  in  improvement,  247,  note, 
for  labor,  etc.,  limitation  on  power  of  legislature  to  give,  38. 
forfeiture  of.     See  tit.  Forfeiture  of  lien. 

geologist  exploring  surrounding  country,  not  allowed  to,  123,  note, 
in    contract    involving   construction    of    buildings   on    separate    lots, 

299,  note, 
inchoate  right  to. 

ceases  when,  371. 

construction,   29. 
interest   allowed   on,  only  from  date  of,   7.o4,  note, 
limitation  of.     See  tit.  Limitation  on  liens, 
logger's,  as  to  law  giving,  48,  note. 
mechanic's,  a  favored,  9. 
mining  expert,   exploring  surrounding   country,   not   allowed   a,   123, 

note, 
nature  of  claim  of.     See  tit.  Claim  of  lien, 
new  act  repealing  old  law,  effect  on  existing  right,  43,  note, 
new  claim  of,  not  necessitated  by  change  of  ownership,  299. 
none  attaches  until  claimant  files  statement,  451,  note, 
none  under  void  contract  for  extra  work,  195. 
not  acquired  until  claim  filed,  42. 
not  waived  by  sureties  when,  572,  note, 
notice  to  owner  as  condition  of,  292. 
object  or  thing  to  which  attaches,  13. 
of  architect.     See  tit.  Architect, 
of  mechanics.     See  tits.  Mechanic's  lien;  Mechanic's-lien  law. 

a  favored  lien,  9. 

classification  of.     See  tit.  Classification. 

for  work  done  does  not  attach  to  public  property,  153. 

general  nature  of,  10. 
of  original  contractor. 

paid  after  liens  of  his  subclaimants,  68. 

preferred  to  other  liens,  68. 
of  subcontractor,  where  amount  of  claim  included  by  contractor,  77. 
on  franchise,  under  Washington  statute,  447,  note, 
on  homesteads.     See  tit.  Homestead. 
on  land  or  structure. 

as  to  whether  is,  3,  note. 

conflict  in  the  decisions,  3,  note. 


958  GENERAL   INDEX. 

LIEN    (continued). 

on  mines.    See  tit.  Mines  and  mining  claims. 

on  public  property,  none,  200. 

on  structure  separate  from  fund,  14. 

on  the  fund,  15. 

on  two  or  more  buildings.     See  tit.  Two  or  more  buildings. 

one  doing  work  as  subcontractor  before  law  went  into  effect,  43,  note. 

one  or  more  claims  of,  necessity  for,  298. 

original  contractor  entitled  to,  when,  67,  note. 

paid  by  owner,  finding  as  to,  737. 

persons  joining  in,  299. 

primarily  on  structures,  1.51. 

prior,  contractor  must  inform  himself  as  to,  4.51,  note. 

priorities  between  mechanic's,  and  mortgages,  299,  note. 

professional  services  on  a  mine,  allowed  for  when,  123,  note. 

re-enactment    of   prior   law   somewhat   modified,    effect    on    existing 

claims,  44. 
relates  back  to  time  work  was  done  or  materials  commenced  to  be 

furnished,  449,  note, 
relation  of,  to  debt,  17. 
release  of.    See  tit.  Release  of  lien. 

right  to,  determined  by  nature  of  improvement,  etc.,  43,  note, 
rights  under,  how  ascertained,  44,  note, 
separate  claim  not  required  on  change  of  ownership,  299. 
specified   classes   of  work   for  which   given,   impliedly   excludes   all 

others,  114,  note, 
statute  must  be  strictly  complied  with,  4.51,  note, 
subjects  of  mechanic's  lien,  417. 

superintendent  of  construction,  allowed  for,  123,  note, 
territorial  extent  of.     See  tit.  Limitation  on  liens, 
time  of  filing,  change  of,  by  subsequent  statute,  effect,  44. 
unknown  to  the  common  law,  4. 
upon  building  distinct  from  land  when,  151,  note. 
void,  cannot  be  converted  into  valid,  by  consent,  16,  note. 
waiver  of.     See  tit.  Waiver  of  lien, 
where  contract  involves  construction  of  buildings  on  separate  lots, 

299,  note,  300. 
where  materials  not  of  quality  required  to  be  used  in  building,  247, 

note. 
where  materials  suitable  for  building,  247,  note. 

LIEN    CLAIMANT. 

intervention  of,  after  suit  commenced,  730,  note. 

must  follow  statute,  255. 

other  than  original  contractor,  254. 

proper  parties  in  action  to  foreclose  lien,  608. 


GENERAL   INDEX.  959 

LIEN  CLAIMANT  (continued), 
surety  as. 

as  to,  gencnilly,  561. 

under  legal  obligation  not  to  foreclose,  562. 
when  may  attack  prior  encumbrances,  460. 
where  there  is  no  contractual  relation,  254. 

LIENABLE    AND    NON-LIENABLE    ITEMS. 
effect  of  commingling,  316. 

LIEN-HOLDERS. 

defective  claim  of  lien  as  notice  to  bona  fide,  538. 
other  than  claimants,  rights  of,  537. 

LIENORS. 

prior,  proper  parties  in  action  to  foreclose  mechanic's  lien,  609. 

LIMITATION.    See  tit.  Statute  of  limitations. 

LIMITATION    OF    ACTION.     See  tit.  Statute  of  limitations. 

LIMITATIONS    ON    LIENS. 

estates  and  interests  subject  to  liens, 
as  to  estoppel. 

estates  or  interests  bound  by,  as  to,  generally,  428. 

general  principles  of  estoppel  in  pais,  429. 

general  purpose  of  mechanic's-lien  law,  429. 

general  rule   as   to  when   notice   of   non-responsibility   must   be 

given.    See  tit.  Notice  of  non-responsibility, 
person  not  contracting  directly  or  through  agent  not  liable,  429. 
statutory  provision,  429. 

wife's  property  bound  by  husband's  act  when,  430,  note. 
by  contract. 

as  to,  generally,  415. 
agency,  statutory,  416. 
as  to  authority. 

of  executor,  415,  note. 
of  guardian,  415,  note. 

of  persons  acting  in  representative  capacity.  415,  note. 
of  trustee,  415,  note. 
as  to  oreation  of  right  to  mechanic's  lien  by  minors  and  others 

under  personal  disability,  415,  note, 
as  to  estates  or  interests  affected  by,  415,  note, 
as  to  right  of  licensee,  415,  note, 
coninuuiity  property  bound  when,  426,  note, 
equitable  estates,  as  to  being  charged  with  lien,  415,  note, 
estates  or  interests  bound  by  contractual  relation  with  holder, 
bound  by  estoppel.     See  "  As  to  estoppel,"  this  title, 
statutory  provision.  415. 


960  GENERAL   INDEX. 

LIMITATIONS  ON  LIENS.     Estates  and  interests  subject  to  liens. 
By  contract    (continued). 
fee  subject  to  lien,  417. 
grantee   of   contracting  owner,  liability   as  to   mechanic's  lien, 

415,  note. 

homestead  bound.     See  tit.  Homestead. 

as  to,  generally,  42.5. 

before  amendment  of  1887,  425,  note. 

mechanic's  lien  on,  415,  note. 

since  amendment  of  1887,  426,  note, 
interest. 

of  lessee  bound  by. 

as  to,  generally,  421. 

and  tenants  for  life,  mechanic's  lien  on,  416.  note. 

contract  made  for  benefit  of  lessee  of  mine,  422,  note. 

mining  lease  with  option  of  purchase,  422,  note. 

of  a  mine,  422,  note. 

secret  agreements  of  lessee,  425. 

under  act  of  1862,  423. 

under  lease  for  ordinary  development-work,  422,  note. 

where  nothing  capable  of  removal  from  premises,  424,  note, 
of  vendee  in  possession  bound  by,  421. 
joint  tenants  and  tenants  in  common,  mechanic's  lien  in  case  of, 

416,  note. 

lease  in  which  lessor  has  no  interest,  420,  note, 
leasehold  estates,  mechanic's  lien  on,  416,  note, 
legal  title  subject  to  lien,  417. 
lessee  in  possession. 

as  to,  generally,  419. 

contract  to  perform  labor  upon  mine,  419,  note. 

on  lease  of  mine,  419,  note, 
mining  claim  subject  to  lien,  418. 
ownership  or  relation  to  property  sufficient  to  bind  by  mechanics' 

liens,  416,  note, 
separate  property  of  wife  bound  when,  426,  note, 
statutory  agency,  416. 
tenant,  power  to  bind  fee,  416,  note, 
title  being  held  in  trust,  420. 
under  act  of  1855-56,  415,  note, 
vendee  in  possession,  418. 

what  interest  or  estate  mechanic's  lien  attaches  to,  416,  note. 
lien  as  limited  by  contract, 
as  to,  generally,  409. 
contract  as  notice,  411. 
contract  of  subcontractor. 

as  to,  generally,  412. 

claimants  under  subcontractor,  41.3. 
general  interpretation  of  statutory  provision,  410. 


I 


GENERAL   INDEX.  061 

LIMITATIONS  ON  LIENS.     Lien  as  limited  by  contract  (continued). 
"  price,"   as  related  to  the  phrase   "  for  the  value  "   giving  lien, 

411. 
statutory  provisions  relative  to,  410. 

"  value  "  in  statute  giving  lien,  use  of,  in  relation  to  '"  price,"  411. 
lien  clainied  as  against  interest  of  a  minor,  409,  note. 
on  leasehold  estate. 

as  to,  generally,  394,  note. 

surrender  by  tenant  does  not  defeat  lien,  394,  note, 
priorities.     See  tit.  Priorities. 
"  property  "  extent  of  lien,  394. 
property  viewed  as  an  entirety. 
as  to,  generally,  402. 
canals,  rule  as  to,  404-406. 
distinct  objects  on  one  parcel  of  land,  404. 
false  representations  as  to  ownership  of  building,  effect  on  lien, 

•407. 
gas-works,  rule  as  to,  404-406. 
general  rule  as  to,  403. 
lien  on  building  alone, 
as  to,  generally,  407. 

false  representations  as  to  ownership,  407. 
lien  on  portion  of  structure,  403. 
machine,  rule  as  to  becoming  fixture,  403. 
mines  and  mining  claims, 
as  to,  generally,  408. 
general  rule  in  reference  to,  408. 

material-man  not  limited  to  separate  structure  in,  408,  note, 
railroad,  rule  as  to,  403-406. 
water-works,  rule  as  to,  404-406. 
territorial  or  "  property  "  extent  of  lien, 
as  to,  generally,  394. 

fair-ground  tract,  as  to  amount  of  land  necessary,  396,  note, 
land  affected  when  building  destroyed  or  removed,  397. 
mines  and  mining  claims.     See  tit.  Mines  and  mining  claims, 
adjacent  non-mineral  land  not  included,  399. 
lion  attaches  to  what,  398. 
machinery  used  in. 
as  to,  generally,  400. 
before  amendment  of  1907,  400. 
effect  of  amendment  of  1907,  401. 
several  mining  claims  operated  as  one  mine,  399. 
railroad,  the  width  of  strip  on  either  side  necessary.  396.  note, 
space  for  convenient  use  and  occupation.     See  tit.  Convenient  use 
and  occupation, 
as  to,  generally,  395. 

court  may  exercise  judgment  when,  39G. 
Mech.  Liens  —  61 


962  GENERAL   INDEX. 

LIMITATIONS  ON  LIENS.      Territorial    or    "property"    extent    of 
lien.     Space  for  convenient  use  and  occupation  (continued), 
liens  confined  to  what,  396. 

the  words  "  convenient  use  and  enjoyment  "  equivalent  to  what, 
395. 
statutory  provisions  as  to,  395. 
structures,  land  necessary  for  support  of,  396. 
to  what  lien  attaches,  394. 

LIQUIDATED    DAMAGES. 

as  to,  generally,  186. 

pleading  under  conti-act  for,  647,  note. 

provision  for,  in  contract  does  not  alone  justify  recovery,  695. 

LIS    PENDENS. 

not  necessary  to  file  in  action  to  foreclose  mechanic's  lien,  601. 

LOGGER'S    LIEN. 

as  to  law  giving,  48,  note. 

LOWER    COURT. 

fixing  attorneys'  fees  in  supreme  court,  776. 

LUMBER. 

below  contract  requirement,  rights  of  owner,  247. 

MACHINERY. 

furnished  as  a  material-man,  143,  note. 

lien  upon,  when,  143. 

pumps  for  water-works,  143,  note. 

things  affixed  to  other  works  within  rule,  143,  note. 

written   contract  to  furnish,  at  fixed  price,  construction,   177,  note. 

MACHINISTS.     See  tit.  Laborer. 
definition  of,  103,  note. 

MALPERFORMANCE    OF    WORK. 

contractor,  testimony  of,  in  rebuttal  on  charge  of  malperformance 

of  work,  694,  note, 
evidence  of. 

as  to,  generally,  694. 

of  architects,  694. 

of  carpenter,  694. 

testimony  of  contractor  in  rebuttal,  694. 

MANAGER. 

of  corporation   erecting  a  building  performing  no  manual   labor,  no 

lien,  119,  note. 


GENERAL    INDEX.  963 

MANTELS. 

material-man  placing,  in  situ,  lien,  82. 

MARSHALING    ASSETS. 

of  sale,  order  of,  778,  note. 

MATERIAL    ISSUE. 

failure  to  find  on,  error,  737,  note. 

MATERIAL-MAN.     See  tit.  Materials, 
as  to  who  is,  80. 
as  to  who  is  not,  80. 

burden  to  prove  amount  due  exceeded  amount  paid,  680,  note, 
circumstances  under  which  lien  for  materials  is  given  to. 
as  to,  generally,  83. 
alteration,    construction,    addition    to,    repair,    classes    of   work    to 

be  distinguished  in  claim  of  lien,  92. 
as  affected  by  original  contract,  85. 
as  to  passing  of  title  to  materials,  83,  note, 
building  as  "  material  furnished,"  92. 
cartage,  where  paid  as  portion  of  cost  of  material,  91. 
charges  for  carriage  of  materials,  included   in  lieu,  91. 
contract. 

for  labor  in  connection  with,  85. 
for  sale  of,  85. 
out  of  state,  84. 
cost  of  placing  material  in  situ,  91. 
extent  of  alteration  or  repair,  93. 
fixtures,  94. 

formalities  regarding  contract,  85. 

"  furnished,"   when  delivered   or  ready  for  delivery,  88. 
general  essentials  as  to  material  furnished,  86. 

lumber  used  in  building  temporary  houses  in  construction  of  rail- 
road, not  subject  of  lien,  89. 
materials.    See  tit.  Materials. 

delivered  in  package,  though  portion  only  used,  basis  of  lien,  90. 
furnished. 

for  mine,  94. 
for  street-work,  95. 
not  fit  for  purpose,  lien  denied,  86,  note. 
sold  and  delivered  out  of  state,  84,  note, 
mines  and  mining  claims.    See  tit.  Mines  and  mining  claims. 

materials  for,  95,  96. 
nature. 

and  manner  of  use  of  materials,  86. 

of  property  for  which  materials  furnished,  95. 

of  work  on  property  for  which  materials  furnished,  92. 


964  GENERAL    INDEX. 

MATEEIAL-MAN.     Circumstances  under  which  lien  for  materials  is 
given  to   (continued). 

patterns  used  in  manufacture  of  couplings  not  basis  of  lien,  90. 

powder  used  in  blasting,  lien  for,  90. 

required  to  be  furnished  for  the  particular  building,  84,  note. 

to  be  furnished  according  to  plans  and  specifications,  85,  note. 

use  of  materials,  83. 

used  in  structure,  must  be,  88. 
contract  between,  and  owner  is  not  an  "  original  contract,"  165. 
contractor's  order  in  favor  of,  where  building  destroyed  by  fire,  196, 

note, 
definition  of,  80. 
distinction  between. 

and  laborers,  93. 

and  original  contractor,  62,  64,  81,  83. 

and  original  contractors  and  subcontractors,  79. 

laborers  and,  93. 
distinguished  from. 

original  contractor,  79. 

subcontractor,  73. 
effect  on,  of  indemnifying  owner  against  liens,  477,  note, 
employees  of,  preparing  materials  not  subcontractors,  74. 
failure  to  file  notice  with  school  board,  370,  note, 
finding  that  claim  of,  was  filed  in  due  form,  797,  note, 
furnishing  material  for  a  group  of  buildings,  lien,  404,  note. 
general. 

obligations  of,  98. 

rights  of,  97. 
knowledge  of  terms  of  original  contract,  effect  upon,  83,  99. 
laborers  of,  generally,  have  no  lien,  105,  132. 
lien. 

for  materials  furnished  in  mines  and  mining  claims,  96. 

of,  enforcement  independent  of  contract,  97,  note. 
materials  must  be  such  as  contract  calls  for,  to  entitle  to  lien,  247, 

note, 
may  have  execution,  etc.,  against  materials  furnished  not  actually 

used,  98. 
no  interest  in  fund  provided  by  contractor  against  liens,  74,  note, 
not  entitled  to  lien,  liability  of  sureties  on  contractor's  bond  to,  550, 

note, 
not  limited  to  separate  structure  in  mining  claim,  408. 
not  merely  subrogated  to  rights  of  original  contractor,  75,  note, 
not  usually  an  original  contractor,  60. 
original  contractor  when,  55,  63. 
owner's. 

action  to  foreclose  lien  by,  589. 

must  file  claim  of  lien  when,  384,  note. 


I 


GENERAL   INDEX.  9fif» 

MATERIAL-MAN  (continued). 

|)ersi)iial  action  against  purchaser  of  material,  97,  note, 
placing  materials  in  situ, 
as  to  rights,  generally,  81. 
in  ease  of  electric  plant,  82. 
in  case  of  ice  plant,  82. 
in  ease  of  steam  plant,  81. 
in  case  of  tiling  and  mantels,  82. 
in  furnishing  machinery,  etc.,  in  mine,  81,  note, 
priority  over  subcontractors  under  same  contractor,  98. 
privity  of  contract  between,  and  owner,  97,  note, 
proof  that  amount  due  exceeded  amount  paid,  680,  note, 
receipt  of,  expressly  stating  it  to  be  of  "  payment  by  note,"  effect, 

576. 
right. 

of  action  upon  bond  given  by  contractor,  98. 
to  lien. 

is  of  constitutional  creation,  97,  note, 
where  contract  abandoned,  249,  note. 

where  materials  not  of  quality  required  to  be  used,  247,  note, 
separate  claims  for  materials  cannot  be  filed  by,  301. 
should  not  file  separate  claims  for  different  items  of  material  fur- 
nished, 301. 
statutory  original  contract,  provisions  in,  for  payment  to,  210. 
subcontractor's,  complaint  in  action  to  foreclose  lien,  625. 
teaming  for,  no  lien,  132. 

MATERIAL    VARIANCE.     See  tit.  Variance, 
in  claim  and  proof,  713-716. 

MATERIALS.     See  tit.  Material-man. 

atlditional,  delivery  of,  as  affecting  right  to  file  claim,  377,  note. 

are   required   to  be   furnished   for  the  particular   building,  84,   note. 

attachment  for,  furnished,  548. 

building  as,  92. 

cartage,  charges  for.     See  tit.  Cartage. 

circumstances  under  which  lien  given  for,  83. 

construction  of  word,  as  used  in  claim,  342,  note. 

contract. 

by  public  body  to  provide,  construction,  174. 

for,  out  of  state,  84. 
contractor  cannot  keep  alive  right  by  giving  additional  orders  for, 

377,  note, 
deer  and  bear  meat  furnished  to  laborers,  not,  89. 
description  of,  furnished,  342,  note, 
excessive  claim  for,  effect  on  lien,  579. 
for  alteration  and  repair.     See  tit.  Alteration  or  repair. 


966  GENERAL   INDEX. 

MATERIALS   (continued). 

foreclosure  of  lien  for,  allegations. 

as  to,  generally,  632. 

affixed  and  attached,  633. 

dates  on  whicli  materials  furnished, 
as  to,  generally,  634. 
"  on  or  about,"  sufficiency  of  allegation,  634. 

defect  in  complaint  waived  how,  633. 

reference  to  claim  of  lien  as  exhibit,  633. 
furnished. 

before  filing  contract,  242,  note. 

by  owner  as  part  payment,  216,  note. 

for  a  group  of  buildings,  lien  for,  404,  note. 

for  mines  and  mining  claims.     See  tit.  Mines  and  mining  claims. 

for  street-work,  95. 

for  work  in  mining  claim,  claim  of  lien,  295. 

from  time  to  time,  interest  on,  754. 

under  separate  contracts,  not  necessary  to  recite  in  claim  of  lien, 
317,  note, 
furnishing. 

improper,  by  owner,  269,  note. 

of,  continuous  in  its  nature,  453,  note, 
how  used,  88. 
items  of  account  for,  342. 
left  over. 

no  lien  for,  87. 

otherwise  where  furnished  in  a  bundle,  although  portion  of  bundle 
only  used,  90,  98. 
lien  for.     See  tit.  Lien. 

inferior,  where  used  in  improvement,  247,  note. 

relates  back  to  time  when,  commenced  to  be  furnished,  449,  note, 
450,  453. 

when  allowed,  90. 
liens  upon,  143,  note, 
meats  furnished  for  laborers  in  a  mine,  not  proper  subjects  of  lien, 

89. 
money  advanced  is  not,  within  provisions  of  contractor's  bond,  559. 

must  be. 

furnished  by  contract  with  owner,  467,  note. 

such  as  contract  calls  for  to  give  lien,  247,  note. 

suitable  for  the  purpose  for  which  furnished,  247,  note, 
nature  and  manner  of  use  of,  86. 
not  fit   for  purpose,  lien  denied,  86,  note, 
not  of  quality  required  to  be  used  in  particular  building,  rights  of 

material-man  to  lien,  247,  note, 
of  character  ordinarily  used  in  such  building,  lien,  86,  note, 
party  furnishing,  contradictory  findings  as  to,  743. 


GENERAL   INDEX.  967 

MATERIALS   (continued), 
patterns.     See  tit.  Patterns, 
powder.     See  tit.  Powder, 
presumption  of  use,  701,  note, 
right  to,  upon  abandonment   of  work,  477. 
setting  aside  arbitration  as  to  amount  due  for,  184,  note, 
situ,  placing  in.     See  tit.  Situ. 

sold   and  delivered   outside  of  state  to  be  used  in  particular  build- 
ing, 84,  note, 
stating  quantity  of,  318,  note, 
subject  to  attachment,  execution  and  other  legal  process,  where  not 

actually  used  in  building,  98. 
subsequent  contract  for,  effect  on  time  of  filing  lien,  377. 
substantial  compliance  with  statutory  requirement,  318,  note, 
time  begins  to  run  against  lien  for,  when,  453,  note, 
tools.     See  tit.  Tools, 
use  in  building,  evidence  of,  701. 
use  of,  findings  as  to,  737. 
used. 

elsewhere  than  in  improvement  on  which  lien  claimed,  300. 

in   temporary  structures,  not  subject  of  lien,  89. 
various  items  of. 

as  to,  generally,  301. 

interest  allowed  on.     See  tit.  Interest. 

successive  liens  cannot  be  filed,  301. 

MATTER    IN    DISPUTE. 

questions  assuming,  676. 

MEANING    OF    WORDS.     See  tit.  Words  and  phrases, 
parol  evidence  to  explain, 
as  to,  generally,  676. 
gross  ton,  676. 

MECHANIC.     See  tit.  Laborer. 
definition   of,   102,  note. 

MECHANIC'S    LIEN.     See  tits.  Lien;   Mechanic's-Iien  law. 
against  several  buildings,  299,  note,  300. 
application  of,  to  railroads,  301,  note, 
as  defense  in  action  to  foreclose  mortgage,  663. 
assignability  of,  538,  note, 
attaches  to  a  building,  in  preference  to  prior  mortgage,  when,  457, 

note, 
constitutionality  of,  216,  note. 
does  not  attach  to  public  property,  153. 
extent  of  lien.     See  tit.  Limitation  on  liens. 


968  .GENERAL   INDEX. 

MECHANIC'S  LIEN  (continued). 

fails  when  contract  not  binding  on  owner,  159. 

foreclosure  of.    See  tit.  Foreclosure  of  lien. 

garnishment  of  general  creditor  subsequent  to,  548. 

general  purpose  of  the,  429. 

guardian  cannot  subject  estate  of  ward  to,  157. 

impairment  of,  statutory  provisions,  220. 

mistake  as  to  legal  and  equitable  ownership,  effect,  320,  note. 

no  equitable  lien  when,  157,  note. 

notice  of  claim.     See  tit.  Notice, 

on  community  property,  161,  note. 

on  land  of  married  woman,  159,  note. 

on  landlord's  interest  created  by  tenant,  532,  note. 

on  leasehold   estate,  319,  note. 

on  public  building,  none,  219,  220. 

on  railroad,  352,  note. 

on  separate  buildings  on  non-contiguous  lots,  300,  317,  note. 

priority.     See  tit.  Priorities. 

between,  and  mortgage,  299,  note. 

over  deed  of  trust  on  canal,  456,  note. 

over  mortgage  for  advances.     See  tit.  Priorities, 
as  to,  generally,  447,  note. 

over  subsequent  liens,  457,  note, 
protection  of,  by  enjoining  sale  under  process,  592,  note, 
right  conferred  by.     See  tit.  Right  conferred  by  mechanic's  lien, 
right  to. 

by  one  employed  in  mine  by  month,  301,  note. 

enforce  and  pursue  other  remedy,  294,  note. 

file,  against  several  buildings,  300,  note, 
setting  up,  as  defense  to  foreclosure  of  mortgage,  663. 
statute  of  limitations  begins  to  run  against,  on  open  account  when, 

170,  note, 
waiver  of,  by  contract  inconsistent  with,  216,  note, 
what  entitles  to  lien,  160,  note, 
work  must  be  done  or  materials  furnished  under  contract,  160,  note. 

MECHANICS-LIEN  LAW.    See  tits.  Lien;  Mechanic's  lien. 
a  favored  lien,  9. 
and  mortgage  compared,  IS. 
California.     See  tit.  California  statute, 
classification  of  liens  under.     See  tit.  Classification, 
confusion  of  authorities  as  to,  21. 

construction  of  statutes  giving.     See  tit.  Construction, 
evolution  of,  in  California,  5. 
extent  of  lien,  29. 
fundamental  idea  of,  5,  note, 
general  nature  of  lien,  10. 


GENERAL   INDEX.  969 

MECHANICS-LIEN  LAW    (continued), 
history  of.     See  tit.  History, 
inchoate  right  to  lien,  how  construed,  29. 
interpretation  of,  52. 

kinship  between  the  statutes  of  the  various  states,  15. 
lien  on  structure  separate  from  land,  17. 
nature  and  scope  of  right  conferred  by,  20. 
nature  of  action  to  foreclose.    See  tits.  Action;  Foreclosure  of  lien. 

as  to,  generally,  19. 
object  or  thing  to  which  lien  attaches,  13. 
of  California,  divisions  of,  134. 
peculiarities  of,  15. 
penal  provisions  in,  26. 
perfection  of  the  lien,  as  to,  29. 
purpose  of,  to  stimulate  building,  8,  note, 
relation  of  lien  of,  to  debt,  17. 
remedial  provisions  and  statutes,  30. 
rights  under,  how  ascertained,  44,  note, 
scope  of  right  conferred  by,  20. 
spirit  of.     See  tit.  Spirit. 
theory  of.     See  tit.  Theory. 

MEMORANDUM.     See  tit.  Memorandum  of  contract, 
answer  failing  to  deny  that  none  was  filed,  798,  note, 
of  settlement  made  by  wife  acting  for  community,  680,  note, 
rule  as  to  inadmissibility  of  parol  evidence  not  applicable  to,  692. 

MEMORANDUM    OF    CONTRACT.     See   tits.  Memorandum;    Statu- 
tory original  contract, 
statutory  provisions, 
as  to,  generally,  234. 
contract  or  copy  thereof  as  a,  235. 
description  of  projx'rty  to  be  affected  thereby,  237. 
erroneously  describing  adjoining  lot,  237,  note, 
expression  in,   "  drawings  hereto  annexed,"   construction   of,  240. 
general  effect  of  provisions,  234. 
must  not  be  too  general,  238. 

names  of  all  parties  to  contract  shall  be  signed,  236. 
object  of  filing  the  memorandum,  235. 
payments  provided  for  in,  241. 
place  of  filing,  242. 
purpose. 

and  object  of  provisions,  235. 

for  which  building  is  intended,  238,  note, 
reference  to  detailed  drawings,  241. 
referring  to  plans  and  specifications,  239. 
should  show  what,  238. 


970  GENERAL   INDEX. 

MEMORANDUM  OF  CONTRACT.     Statutory  provisions  (continued), 
statement. 

of  general  character  of  work  to  be  done,  237. 
of  work,  general  principles  as  to,  238. 
.   time  of  filing,  242. 
what  not  required  in,  235. 
where  does  not  disclose  there  were  plans  and  specifications,  240. 

MEXICAN    GRANT. 

land  held  under,  not  within  statute,  145. 

MILL. 

on  mining  claim,  included  in  mechanic's  lien,  409. 

MINERS.     See  tit.  Laborer, 
definition  of,  103,  note. 

MINES.     See  tit.  Mines  and  mining  claims. 

as  to  oil-well  being,  116,  note. 

furnishing  machiner}-,  appliances,  etc.,  and  installing  same,  person  a 

material-man  when,  64,  note, 
in  a  mining  claim,  is  a  "  structure,"  139. 

MINES    AND    MINING    CLAIMS. 

action  to  foreclose  mechanic's  lien  where  several  adjoining,  owned 

by  one  company,  603. 
agreement  that  lessee  or  purchaser  shall   iinpro\e  at   his  own  cost, 

438,  note. 
"  any  such  mine,"  meaning  of  term,  in  statute,  122.,  note, 
blacksmith  sharpening  tools  for  use  in,  entitled  to  mechanic's  lien, 

91. 
boarding-house    keeper   furnishing   board    to    men    working    in,    not 

entitled  to  mechanic's  lien,  91,  note, 
book-keeper   of,   not   entitled   to   mechanic's   lien   for   value   of   ser- 
vices, 91,  note. 
"  completion  of,"  what  constitutes,  279. 
construction,  alteration,  or  repair  of  mine, 
as  to,  generally,  125. 
notice  of  non-responsibility,  125. 
cook   in,  not  entitled  to   mechanic's  lien   for   value   of   services,  91, 

note,  131. 
custodian  of  property  of,  not  entitled  to  lien,  124,  note, 
description  of,  in  claim  of  lien,  357. 
drifting  in.     See  tit.  Drifting. 

as  to,  generally,  126. 
"  drifting  in  a  tunnel,"  not  "  construction,  alteration,  addition  to, 

or  repair,"  within  statute,  94. 


GENERAL   INDEX.  971 

MINES  AND  MINING  CLAIMS    (continued), 
employment  in,  by  month,  lien,  301,  note, 
findings  as  to  property  operated  as  one  mine,  745. 
labor  in. 

generally,  122. 

nature  of,  destructive,  not  constructive,  7,  note. 

performed  at  request  of  one  alleged  to  be  agent  of  owner,  630. 
land  held  under. 

agricultural  patent  not  within  statute,  146. 

Spanish  and   Mexican  grant  not   within   statute,   145. 
lien. 

not  a  mechanic's,  of  mining  partner,  16,  note. 

of  persons  performing  labor,  etc.,  43,  note. 

on,  relates  back  to  time  when  work  performed,  451. 
liens  against  interest  of  minor,  409,  note, 
liens  allowed  for  work  in. 

as  to,  generally',  123. 

custodian   of   property'    of,   does   not   perform    "  work "    on    or   in 
mine,  124,  note. 

for  constructing  wagon-road,  none,  123,  note. 

geologist  exploring  surrounding  country,  no  lien,  123,  note. 

mining  expert  exploring  surrounding  country,  no  lien,  123,  note. 

"  mining  superintendent  "  distinguished  from  "  superintendent  of 
a  mine,"  124,  note. 

picks,  lien  allowed  for  sharpening,  124,  note. 

professional  services  in  mine,  123,  note. 

superintendent  of  construction,  123,  note. 

work  as  miner  in  development,  improvement,  etc.,  lien,  125,  note. 
liens  attach  to  what. 

as  to,  generally,  398,  408. 

adjacent  non-mineral  land  not  included,  399. 

boarding-house  on  claim  for  workmen  included,  409. 

general  rule  in  reference  to  mining  claims,  408. 

land  and  reduction-works  a  unity,  399,  note. 

machinery  used  for  reduction  of  ores, 
as  to  when  included,  400. 
before  amendment  of  1907,  400. 
effect  of  amendment  of  1907,  401. 

material-man  not  limited  to  separate  structure  on,  408,  note. 

mill  for  reducing  ores  included,  409. 

non-contiguous  land  included  when,  399,  note. 

number  of  non-contiguous  lode  claims,  non-mineral  lands,  etc.,  not 
included,  399,  note. 

reduction-works  on  claim  included,  409. 

several  mining  claims  operated  as  one  mine,  399. 

tramway  for  hauling  ores  included,  409. 
liens  cannot  date  back  of  commencement  of  work,  279,  note. 


972  GENERAL    INDEX. 

MINES  AND  MINING  CLAIMS    (eoutinued). 
materials  furnished  for  work  in. 

as  to  lien,  95,  96. 

claim  of  lien,  295. 
meats  furnished  to  laborers  in,  not  subject  of  lien,  89. 
"  mining  claim,"  as  to  whether  includes  deeded  land,  145,  note, 
mining  instrumentalities,  as  to,  127. 
oil-well   on  a  tract   of  land  is,  when,   147. 
ownership  of,  by  foreign   corporation,  presumption   of  agency,   678- 

680. 
person  working  mine  as  agent  of  owner,  532. 

power  of  person  claiming  to  act  as  agent  to  confer  right  to  mechan- 
ic's lien,  418. 
real  property  worked  as  a  mine  within  second  clause  of  statute.  144. 
running  tunnel.     See  tit.  Tunnel. 

as  to,  generally,  127. 
sale  of,  with  authority  to  work  and  develop,  eflPect   on  mechanic's 

lien,  438. 
shaft  in  mine.     See  tit.  Shaft. 

as  to,  generally,  127. 
term  "  mining  claim,"  meaning  of,  in  statute,  14t). 
time  in  which  to  file  claim,  391. 
tunnel  in.     See  tit.  Tunnel. 

use  of  material  or  suspension  of  work  on,  279,  note. 
watchman  in. 

idle  mine,  no  lien,  127. 

not  entitled  to  mechanic's  lien  for  value  of  services,  91,  note, 
where  claimant  has. 

performed  labor,  time  of  filing  claim,  392. 

provided  materials,  time  of  filing  claim,  392. 
work  in   "  developing,"   8,  note, 
work  upon  fixtures  in  mine,  lien  for,  152. 
working  by  lessees,  43,  note. 

MINES    AND    MINING    CORPORATIONS. 

mortgagee  secretary  of  mining  corporation,  priority  of  mechanics' 
liens,  457,  note. 

MINING    CLAIM.     See  tit.  Mines  and  mining  claims. 

MINING    EXPERT. 

not  entitled  to  lien  for  exploring  country  surrounding  mine,  123,  note. 

MINING    INTERESTS. 

effect  of,  in  producing  uniformity  of  lien,  5. 

MINING    LEASE. 

with  option  of  ijurchase,  liability  to  mechanic's  lien,  422,  note. 


GENERAL   INDEX.  973 

"  MINING    SUPEEINTENDENT." 

distinguished   from   "  sujx'riiiteiulent  of  a  mine,"   124. 

MINORS. 

as  to  creation  of  right  to  mechanic's  lien  by,  41  ;1,  note. 

MISJOINDER  OF  PARTIES.    See  tit.  Pleading  and  procedure. 

not  affecting  objecting  party,  654,  note, 
special  demurrer  for,  654. 

MISREPRESENTATIONS. 

of  owner,  as  to  actual  completion,  admissibility  of  evidence  of,  672. 

MISSTATEMENT    OF    FACTS. 

in  claim  of  lien,  effect,  ol'2. 

MISTAKE. 

as  to  legal  and  equitable  ownership  in  claim  of  lien.  320,  note, 
in  christian  name  of  employer  in  claim  of  lien,  effect,  327,  note, 
in  claim  of  lien.     See  tit.  Claim  of  lien, 
in  statement  of  demand,  effect  of,  312,  note. 

MONEY. 

advanced  or  lent. 

evidence  of,  702. 

for  payment  of  materials  or  labor,  no  basis  for  mechanic's  lien,  89. 

not  materials,  within  provision  of  contractor's  bond,  559. 
due,  finding  as  to,  738. 
kind  of,  in  which  judgment  to  be  satisfied,  752. 

MONTANA. 

mechanic's-lien  law  of. 

as  to,  generally,  6,  9. 
construction  of,  26,  note. 

MONTHLY    ACCOUNTS. 

construction    of   contract    where    rendered    under   no    special    agree- 
ment, 169,  note. 

MORTGAGE.     See  tits.  Mortgage  foreclosure;  Mortgagee;  Priorities, 
and  mechanic's  lien  compared,  18. 
for  advances  for  building  purposes,  448,  note. 
for  future  advances. 

as  to,  generally,  459. 

what  constitutes  "  further  advances,"  460. 
for  purchase  price,  458. 
future  advances,  what  are,  549,  note. 


974  GENERAL   INDEX. 

MORTGAGE  (continued). 
lien  of. 

attaches  when  instrument  executed,  458,  note, 
for  advances,  549,  note, 
mechanic's  lien  attaches  to  building  over  prior,  when,  457,  note, 
obligation  to  advance  moneys  for  construction,  549. 
prior,  decree  of  sale  on,  762. 
priority  of.     See  tit.  Priority, 
as  to,  generally,  68. 

between,  and  mechanic's  lien,  68,  299,  note. 

on  land  and  subdivisions  thereof  with  reference  to  the  building, 
447,  note, 
whether  receiving  conveyance  of  mortgaged  premises  works  merger, 
549,  note. 

MORTGAGE  FORECLOSURE.     See  tits.  Mortgage;  Mortgagee. 

setting  up  mechanic's  lien  as  defense  to,  663. 

MORTGAGEE.    See  tits.  Mortgage;  Mortgage  foreclosure. 
future  advances  by,  what  on,  549,  note, 
not  made  party,  right  of  redemption,  782. 
of  owner,  orders  on. 

as  to,  generally,  486. 

destruction  of  building,  effect  of,  486. 
proper  party  in  action  to  foreclose  mechanic's  lien,  610. 
subsequent  notice  of  appeal  to  be  served  on,  when,  789. 

MOTION  TO  STRIKE  OUT. 

granting,  725,  note. 

MUNICIPAL  ORDINANCES. 

regulation  licensing  architects,  107. 

MUTUAL  ABANDONMENT.    See  tit.  Abandonment. 

NAME. 

of  owner.    See  tit.  Names  required  to  be  stated  in  claim. 

or  reputed  owner,  variance  as  to,  immaterial,  717. 
property  identified  by,  in  description  in  claim  of  lien,  354. 

NAME  OF  PERSON  CAUSING  IMPROVEMENT. 

statement  of,  in  claim  of  demand.     See  tit.  Names  required  to  be 
stated  in  claim, 
as  to,  generally,  329. 
naming  of,  sufficient  when,  329,  note. 

NAME  OF  REPUTED  OWNER.    See  tit.  Names  required  to  be  stated 
in  claim. 


GENERAL   INDEX.  975 

NAMES    REQUIRED    TO    BE    STATED    IN    CLAIM. 

as  to,  generally,  317. 

change  of  ownership,  effect  on  claim,  321. 

effect  of  onrdssion  of  name  of  owner  whose  interest  is  to  be  charged, 

319,  note, 
knowledge  of  name. 

as  to,  generally,  322. 

various  statements  considered,  323-32.5. 

where  claimant  does  not  know  name  of  owner  of  fee,  323. 
mistake. 

as  to  party's  interest,  323,  note. 

in  christian  name  of  employer,  327,  note. 
name  of  person  to  whom  material  furnished  must  be  stated,  326,  note, 
object  of  provision,  318. 
of  agent,  329. 
of  employer,  326. 
of  owner. 

at  time  of  filing  claim,  321. 

or  reputed  owner,  318,  325,  note. 
of  person. 

"  causing  improvement,"  329. 

to  whom  material  furnished,  326,  note. 
of  purchaser,  326. 
substantial  compliance,  318-320. 
under  void  statutory  original  contract,  327. 
where  there  are  two  or  more  employers  or  purchasers,  330-332. 

NATURE    OF    LABOR.     See  tits.  Claim  of  lien;  Labor;   Statement 
allegation  of,  in  action  to  foreclose  mechanic's  lien. 

as  to,  generally,  635. 

extra  work,  635. 

grading  and  other  work,  635, 
variance.    See  tit.  Variance. 

as  to,  material,  716. 

between  pleading  and  proof  as  to,  material,  721. 

immaterial  when,  719. 

NATURE  OF  WORK.    See  tit.  Nature  of  labor. 

NEVADA. 

mechanic's-lien  law  of,  6. 

NEW  CAUSE  OF  ACTION. 

making  a,  726,  note. 

NEW  MEXICO. 

mechanic's-lien  law  of,  6,  8,  13,  15. 


97(j  GENERAL   INDEX. 

NEW  TRIAL.    See  tit.  Appeal. 

as  to  grounds  upon  which  order  of,  will  be  granted,  732. 
order  for,  on  appeal. 

as  to,  genorally,  802. 

conflict  of  evidence  as  to  street-work,  803. 

when  sustained,  802. 

NON-LIENABLE  ITEMS. 

commingling  with  lienable,  in  claim  of  lien,  effect,  316,  368. 

NON-LIENABLE  MATERIALS. 

effect  of  claim  for,  on  lieu,  579. 

NON-PAYMENT. 

of  iudebteduess  to  plaintiff  must  be  alleged  in  action  to  foreclose 
lien,  622. 

NON-PERFORMANCE. 

excuse  for,  2S1,  note. 

NON-PRESENTATION  OF  CLAIM. 

by  owner's  laborer,  761,  note. 

NON-RESPONSIBILITY.    See  tit.  Notice  of  non-responsibility. 

NON-STATUTORY   CONTRACT.      See   tits.  Building  contract;    Con- 
tract; Non- statutory  original  contract. 

contract  alleged  in  action  to  foreclose  mechanic's  lien  presumed  to 

be,  when,  625. 
premature  payments  may  be  made  under,  221. 
time  of  performance  of,  may  be  enlarged  by  parol,  261,  note. 

NON-STATUTORY  ORIGINAL  CONTRACT.    See  tit.  Contract, 
as  to,  generally,  201. 

abandonment  of,  liability  of  owner,  482. 
alteration  of  contract,  conspiracy,  206. 

as  to  whether  rule  as  to  waiver  of  lien  applies  to,  574,  note, 
compared  with  statutory  original  contract,  202. 
contract  price. 
computable,  203. 

less  than  one  thousand  dollars,  202. 
may  be  payable. 

after  building  completed,  205. 
at  any  time  agreed  upon,  205. 
before  work  commenced,  205. 
need  not  be  payable. 

after  commencement  of  work,  205. 
in  instalments,  205. 


GENERAL   IXDEX.  977 

NON-STATUTORY  ORIGINAL  CONTRACT   (continued), 
definition  of,  166. 
evading  statute,  203. 
implied  contract  as  to  price  is  a,  202, 
need  not. 

be  filed  if  written,  204. 

be  in  writing,  204. 
notice. 

of  claim  of  lien  in  case  of,  515. 

to  owner  under,  205. 
payment  under. 

in  land,  206. 

may  be  made  when,  205. 

premature,  205. 
performance  of,  time  for,  may  be  enlarged  by  parol,  261,  note, 
premature  payments  under.    See  tit.  Premature  payment. 

as  to,  generally,  205. 

recent  broadening  of  the  doctrine,  206. 
provisions  not  apjilicable  to,  204. 

time  of  performance  of,  may  be  enlarged  by  parol,  261,  note, 
twenty-five  per  cent  need  not  be  retained,  204. 
what  in  no  event  a  statutory  original  contract,  204. 

NONSUIT.    See  tit.  Practice. 

as  to  when  granted,  7.33. 
as  to  when  not  granted,  733. 

NOTARY. 

omission    of    place   of    residence    from    signature    to    verification    of 
claim,  effect,  362,  note. 

NOTE. 

acceptance  of,  for  antecedent  date,  effect  of,  575. 
pa5'nient  bj',  receipt  as  evidence  of,  677. 

NOTICE.     See  tits.  Owner;   Owner,  employer,  or  person  causing  im- 
provement. 

as  to,  generall}',  501. 

contract  as,  of  limitation  of  lien,  411. 

effect  of  serving  several,  524. 

false  or  excessive,  forfeiture  by,  577 

of  action.    See  tit.  Notice  of  action. 

of  appeal.    See  tit.  Appeal. 

of  assignment,  542. 

of  claim.    See  tit.  Notice  of  claim. 

of  completion  of  work.    See  tit.  Notice  of  completion  or  cessation  of 
work. 
Mech.    IJens  —  62 


978  GENERAL   INDEX. 

NOTICE   (continued). 

of  contractor's  failure  to  perform,  560,  note, 
of  non-responsibility.    See  tit.  Notice  of  non-responsibility, 
of  probate  proceedings,  want  of,  676. 
of  sale.    See  tit.  Notice  of  sale, 
question  of  fact,  542. 
several,  effect  of  serving,  524. 
surety's  right  to,  560. 

to  be  filed,  and  operation  thereof,  292,  note. 
to  contractor.    See  Notice  to  contractor, 
to  one  who  does  not  understand  the  English  language,  542. 
to  owner.     See  "  To  owner  or  employer,"  this  title;  and  tit.  Notice 
to  owner. 

as  to,  generally,  502. 

as  condition  of  lien,  292,  note. 

excessive  claim  in,  effect  of,  502,  note. 

history  of  provision,  502. 

signature  to,  502,  note. 

statutory  provision  respecting,  503. 

under  non-statutory  original  contract,  205. 
to  owner  or  employer.    See  "  To  owner,"  this  title. 

as  to,  generally,  502. 

history  of  provision,  502. 

in  California. 

as  to,  generally,  503. 

amendment   inserting  word   "  reputed  "   before   word   "  owner," 
503,  note. 

of  excessive  claim,  effect,  502,  note. 

signature  to,  502,  note, 
valid  contract  as  a,  to  owner,  245. 

NOTICE  OF  ACTION. 

finding  as  to,  737. 

NOTICE    OF    CLAIM.     See  tits.  Claim;  Claim  of  lien. 

to  owner,  distinguished  from  claim  of  lien,  292. 

NOTICE    OF    COMPLETION    OR    CESSATION    OF    WORK. 

as  to,  generally,  380. 
abandonment  of  work. 

as  to,  generally,  386. 

actual  abandonment,  387. 

by  contractor,  387. 

default    of    building    contractor    or    owner    affecting    statute    ©f 
limitations,  effect,  387. 

subclaimants,  as  to  filing  by,  388. 
"  actual  "  and   "  statutory  "   completion,  385. 


GENERAL   INDEX. 


979 


NOTICE    OF    COMPLETION    OR    CESSATION    OF    WOEK     (con- 
tinued), 
actual  completion,  386. 

certificate  of  architect,  effect  on  time  of  filing,  386. 
constitutionality   of   provision,   380,   note, 
failure  of  owner  to  file  notice,  effect,  382. 
general  rule  as  to,  385. 
in  case  of  structures. 

as  to,  generally,  383-385. 

"actual"  and  "statutory"   completion,  385. 

owner's  material-man  must  file  claim,  384,  note. 

who  required  to  file  claims,  383,  384. 

work   of   original   contractor   included,   383. 
not  given  by  owner,  effect,  380,  note. 
purpose  and  scope  of  statutory  provision. 

as  to,  generally,  381. 

error  in  date  of  cessation  from  labor,  effect,  382. 

reason  for  enactment,  382. 

street-work,   whether  included,   382. 

whore  claim  of  lien  was  filed  after  statutory  period  elapsed,  382. 
statutory  provisions  as  to,  380-382. 
substantial  completion,  386. 
time  of  filing. 

agreements  affecting, 
as  to,  generally,  388. 
giving  credit,  388. 

instalment  maturing  during  progress  of  work,  388. 
void  contracts. 

as  to,  generally,  389. 

burden  of  determining  whether  contract  valid,  390. 

subclaimants   cannot    file   under,   when,   388. 

where  statutory  original  contract  is  void,  390. 
what  constitutes  actual  completion,  385,  note, 
what  provision  requires  of  owner,  380,  note. 

where  occupation  of  building  by  owner  is  not  exclusive,  effect,  385, 
note. 

NOTICE    OF    NON-RESPONSIBILITY. 

as  to,  generally,  431. 

agreement    with    lessee    or    conditional    purchaser    as    to    improve- 
ments, 438. 
California  provision  as  to,  433. 

complaint  in  action  to  foreclose  lien  should  allege  not  giving,  620. 
construction  of  statutory  provision.     See  tit.  Construction. 

as  to,  generally,  431,  note. 

of  California  statute,  431,  note, 
effect    of    knowledge    of    claimant   of   lack    of   authority    of    person 
improving,  443. 


980  GENERAL    INDEX. 

NOTICE    OF   NON-RESPONSIBILITY    (eoiitiniiod). 
general  rule  as  to  when  must  be  given,  430. 
immaterial  issue  when,  742. 
lessee  in  possession  making  improvements, 
as  to,  generally,  435-438. 

agreement  with  lessee  or  conditional  purchaser,  436. 
necessitj^  of  posting  notice,  436. 
notice. 

how   to   be   jjosted. 
as  to,  generally,  445. 
in  conspicuous  j^lace,  445. 
where  notice  posted. 

in  little  recess  on  partition-wall  back  from  street,  445,  note, 
on  front  of  building  bordering  public  street,  445,  note, 
when   to  be  posted,  443,  444. 
notice  not  required  when, 
as  to,  generally,  439. 
before  amendment  of  1907,  439. 
in  case  of. 

deed  of  trust  rule  does  not  apply,  442. 
grading  and  other  work  in  incorporated  cities,  441. 
mines  and  mining  claims, 
as  to,  generally,  439,  440. 

personal   property   on   mine,   owner   of,  is   not   owner   of   the 
mine,  441. 
prior  lien,  442. 
notice  or  knowledge  of  improvement. 

corporation  as  owner,  rule  otherwise,  435. 
failure  to  give  notice  of  non-responsibility,  effect,  434. 
purpose  of  provisions  as  to  notice  of. 
as  to,  generally,  433. 
original  California  provision,  433. 
statutory  provision,  431. 
vendee  being  in  possession. 
as  to,  generally,  43.S. 
in  mines  and  mining  claims,  438. 

NOTICE    OF    SALE. 

impeaching  record   of  publication  of,   778,  note. 

NOTICE    TO    CONTRACTOR. 

in  action  against  fund,  625. 

NOTICE    TO    OWNER.     See  tit.  Notice. 

allegation  of,  in  action  to  foreclose  mechanic's  lien,  623. 
as  condition  of  lien,  292,  iiote. 
construction  of  code  provision,  578. 
contents  of,  305. 


GENERAL   INDEX.  981 

NOTICE  TO  OWNER  (continued). 

distinction   between,   and   claim   of   lien,   292. 
necessity  of,  to  intercept  moneys  in  bis  hands,  496. 
provision  of  code  as  to,  578. 
to  withhold  payment. 

deficiency  judgment,   762. 

personal  judgment,   759. 

NOVATION. 

as   to,   generally,   264. 
assignment. 

before  completion  of  work,  265. 

of  whole  contract,  264. 
definition  of,  264. 

extinction  of  contract  by.     See  tit.  Extinction  of  contract, 
of  second  contractor,  future  repairs  may  be  set  off  against,  when, 

666. 
purchaser. 

of  estate  to  pay  for  work  done,  265. 

taking  estate  subject  to  debt,  265. 
takes  place   when,  264. 
where  original  contractor  assigns. 

part  of  contract,  265. 

whole  contract,  264. 

OBJECT. 

distinguished  from  "  property,"  133. 
to  which  the  lien  attaches,  13. 

OBJECT    ON    WHICH   LABOE   MUST    BE    PERFORMED.     See  tit. 
Labor  for  which  lien  is  given, 
as  to,  generally,  630. 
a  well,  636. 

an  ice-box  is  a  fixture  when,  151. 
"  building  or  other  improvement,"   meaning  of  expression,  as   used 

in  statute,   135,  note, 
constitutional  provisions  as  to,  134. 
definition  of  terms  used  in  statute,  135. 
distinction  between  "  object  "  and  "  jiroperty,"  133. 
division  of  the  statute,  134. 
fixtures. 

ice-box  considered  a  fixture  when,  151. 

in  general,  148. 

principles  of  determination  of  character,   149. 

question  of  fact  as  to  whether  things  are,  148. 

work  done  uy>on. 

deemed    ujion    real   property,   151. 
in  a  mine,  152. 


982  GENERAL   INDEX. 

OBJECT     ON    WHICH    LABOR     MUST     BE     PERFORMED     (con- 
tinued), 
grading  under  statutory  provision,  147. 
improvement  or  object,  as  to,  generally,  136. 
lien  primarily  on  structure,  151. 

mining  claims  and  property  worked  as  a  mine.     See  tit.  Mines  and 
mining  claims, 
as  to,  generally,  144. 
land. 

held  under  agricultural  patent  not   within   statute,   146. 
which    is    held    under    Spanish    or    Mexican    grant    not    within 
statute,  145. 
term  "  mining  claim  "  applied  to  what,  145. 
object  or  improvement  upon  which  labor  is  put,  136. 
public  property,  work  done  upon,  153. 
severance  of  building  from  freehold,  effect,  152. 
sidewalk,  one  of  the  objects  enumerated  in  statute,  147. 
statutory  provisions. 
as   to,    generally,    134. 
division  of,  134. 
street-work   done  under  statutory  provision,  147. 
structure. 

enumerated  in  statute, 
as  to,  generally,  141. 
aqueducts,  142. 

bridges  are  expressly  provided  for,  141. 
buildings   enumerated,   141. 
church  is  a  "  building,"  within  statute,   141. 
dance-hall  being  a  covered  structure  resting  on  sills,   141. 
ditch,  142. 
flume,  142. 

machinery  a  fixture  to  realty,  143. 
railroad,  144. 
tunnel,   142. 
well,  142. 
in  general,  first  clause  of  structure,  138. 
mine  or  pit  sunk  in  a  mining  claim  is  a,  139. 
not  enumerated  in  statute, 
as  to,  generally,  139. 

boarding-house  upon  mining   claim,   139. 
ice-room  built  in  and  attached  to  warehouse,  140. 
pipe  line  for  an  irrigation  company,  140. 
poles  set  in  ground  for  electric  line,  140. 
reduction-works  on  a  mine,   140. 
stamp-mill  worked  upon  a  mine,   141. 
swings  between  upright  posts  on   playground,   141. 
tramway  erected  upon  mining  claim,  141. 


GENERAL   INDEX.  983 

OBJECT  ON  WHICH  LABOR  JVLUST  BE  PERFORMED.     Structure 
(continued), 
oil-well,  138. 
on  mine,  138. 

upon  which  labor  is  put,  136. 
system  of  sewers  as  improvement  to  lots  within  statute,  148. 
work  upon  fixtures. 

deemed  done  upon  the  real  property,  151. 
in  a  mine,  152. 
work  upon  mine  in  land  held  under  agricultural  patent  not  included, 
136,  note. 

OBJECTIONS. 

taken  for  the  first  time  on  appeal.     See  tit.  Appeal, 
as  to,  generally,  800. 

OBLIGATIONS. 

of  subcontractors,  77. 

OCCUPANCY. 

by  owner  during  course  of  alteration,  effect  of,  379,  note. 
and  use. 

character  of,  281. 

effect  of,  as  acceptance,  280. 

object  of  statutory  provision,  281. 

payment  in  full  and,  281,  note. 
of  building  by   owner  which   is   neither   exclusive   nor  inconsistent 
with  work,  effect  of,  385,  note. 

"  OCCUPIED." 

construed  to  mean  "  employed,"  369. 

OFFSETS    AND    COUNTERCLAIMS. 

■    against  different  payments,  472. 

in  case  of  valid  statutory  original  contract,  471. 
items  of  damages  for  failure  to  complete  in  time,  473. 
of  owner  against  contractor.     See  tit.  Owner. 
on  abandonment  by  contractor,  473. 

OIL-WELL.     See  tit.  Mines  and  mining  claims. 
as  to  being  a  mine,  IIG,  note. 
as  to  whether  a  structure  upon  a  mine,  138. 
is  a  mining  claim  or  mine  when,  149. 

OKLAHOMA. 

claims  for  liens  assignable  in,  20,  note, 
mechanic's-lien  law  of,  6,  8. 


984  GEXERAIi    INDEX. 

OMISSIONS. 

in  verification  of  claim  of  lien,  effect  of,  364. 

"ON    OR    ABOUT." 

sufficiency  of,  in  complaint  for  foreclosure  of  lien,  652. 

ONE    THOUSAND    DOLLARS.     See  tit.  Non-statutory  contract. 

contract  price  less  than,  202. 

OPEN    DEALINGS. 

of  arbitrators,  183. 

ORAL    AGREEMENT, 
changes  by,  183,  note. 

ORAL    QUALIFICATIONS. 

modifying  composition   agreement  by,  582,  note. 

ORDER. 

giving,  on  mining  company  for  portion  of  amount  due,  effect,  576. 
marshaling  assets  of  sale,  778,  note, 
on  appeal.     See  tit.  Appeal. 
as  to,  generally,  802. 
of  new  trial.     See  tit.  New  trial. 

as  to,  generally,  802. 

conflicting  evidence  as  to  street-work,  803. 

when   sustained,   802. 
paid,  setting  up  as  defense  to  foreclosure  of  lien,  665. 
unaccepted,  not  an  assignment,   540. 

OREGON. 

construction  of  mechanic's-lien  statutes  in,  25,  note, 
mechanie's-lien  law  of,  6,  13. 

ORIGINAL    CONTRACT.     See  tits.  Non-statutory  original  contract; 
Statutory  original  contract;  Void  original  contract, 
alteration   in   work  by  order   of  architect,  557,  note. 
as  to  whether  extra  work  is  done  under,  191,  note,  192,  note, 
basis  of  liability  of  sureties  on  contractor's  bond,  557. 
changes  in. 

authorized  by  contract,  557. 

oral  agreement  as  to,  193,  note, 
contract  between  owner. 

and   laborer  not  an,   165. 

and  material-man  not  an,  165. 
contract   of  subcontractor  not  an,   165. 
definition   of,   165. 
estoppel.     See  tit.  Estoppel. 


GENERAL   INDEX.  985 

ORIGINAL  CONTRACT  (continued), 
filing  of,  provision  for,  valid,  38. 
implied   when,   59. 

in  writing,  for  extra  work  need  not  be,  194. 
oral  agreement  as  to  extra  work,  193,  note, 
provision  that  changes  shall  be  in  writing,  557,  note, 
term  not  used  in  statute,  156. 
valid  or  void,  priorities  under,  449. 
verbal  alterations  of,  194. 

•written   order   where   contract   provides   engineer   maj-   direct   addi- 
tions. 194,  note. 

ORIGINAL    CONTRACTOR. 

actions  by. 

as  to,  generally,  586. 

against  subclaimauts,  588. 

breach  of  valid  contract,  effect  of,  587. 

upon  implied  contract,  587. 

where  statutory  original  contract  void,  588. 
as  to  whether  are,  55. 
definition  of,  54. 
distinction  between. 

and  middleman. 

as  to,  generally,  62. 
illustrations,  63. 

and   subclaimant,   508,  note, 
first  test.     See   "  Test,"  this  title, 
four  essential  features. 

as  to,  generally,  56. 

1.  He  must  be  in  privity  with  owner,  etc.,  56. 

2.  He  must  be  competent  to  create  "  intermediate  "  liens,  56. 

3.  Liens  must  be  dependent  upon  indebtedness  for  which  person 

liable,  56. 

4.  Contract  must  be  for  labor,  56. 
general  obligations  of. 

cannot  waive  rights  when,  71. 
duty  to  file  contract  for  record,  71. 
to  other  persons,   71. 

to  persons  causing  improvement  to  be  made,  69. 
general  rights  of. 

as  against  person  other  than  one  causing  improvement. 

in  privity,  68. 

not  in  privity,  68. 
as  against  person  who  caused  the  improvement. 

as  to,  generally,  66. 

under  a  valid  contract,  67. 

under  a  void  contract,  67. 

voluntary  payments  made  by  owner,  68. 


986  GENERAL   INDEX. 

ORIGINAL  CONTRACTOR  (continued). 

intermediate  liens,  power  to  create,  one  of  the  tests  of,  55. 
judgment  must  be  given  against,  751,  note, 
laborers  of,  placing  in  situ,  right  to  lien,  56. 
material-men.     See  tit.  Material-men. 
owner  cannot  be,  57. 
test  as  to  what  constitutes. 
intermediate  liens,  55. 
original  contract, 
first  test. 

holder  of  legal  title  entering  into  contract,  57. 
implied  original  contract,  59. 
privity,  57. 

tenant  entering  into  contract,  58. 
void  contract,  effect,  58. 
second  test. 

agents  of  original  contractor,  59. 
direct   contract  with   owner,  60. 
intermediate  lien-holders,  59. 
material-man  not  an  original  contractor,  60. 
third  test. 

builder  or  foreman  in  charge  of  construction,  61. 
personal  liability,  60, 
fourth  test. 

labor  contract,  61. 
several  "  original  contractors,"  62. 
two  or  more  original  contractors,  56. 
variance  made  by  liability  of  surety  on  bond,  558,  note. 

OTHER    REMEDY. 

right  to  enforce  mechanic's  lien,  and  pursue,  294,  note. 

OVERSEER. 

performing  manual  labor,  allowed  a  lien,  119,  note. 

OWNER.     See  tit.  Owner,  employer,  or  person  causing  improvement 
actions  by,  against  original  contractor. 

as  to,  generally,  590. 

damages,  590. 

to  bring  in  all  parties,  590,  note. 
agreement  to  assign  claims  to. 

as  to,  generally,  581. 

does  not  constitute  an  accord  when,  582. 

pro  rata  amount  left  blank,  581. 

where  owner  does  not  seek  compromise,  582. 
amount  owing  from,  to  contractor,  sufficient  allegation  of,  in  com- 
plaint to  foreclose  lien,  623,  note. 


GENERAL.   INDEX. 


987 


OWNER   (continued), 
and  reputed  owner,  468. 
architect  as  agent  of,  111. 
as  assignee  of   claim,  539,  note. 
as  to  notice  of  claim  to,  578. 
at  time  of  filing  claim,  321. 
cannot  complain    at  judgment  impressing   fund  due  contractor,  626, 

note, 
cannot  waive  final  certificate  of  architect,  572,  note, 
claim  of  lien  to  inform,  and  facilitate  investigation,  297. 
consent  of,  necessity  for,  159,  note, 
construction  of  code  provision  as  to,  578. 
contract. 

between,  and  laborer  not  an  "  original  contract,"   165. 
for  street- work.     See  tit.  Street-work, 
not  binding  on,  contractor's  lien  fails,  159. 
contractor  as  statutory  agent  of,  529,  note. 

contractual  relation  with,  need  not  be  shown  in  claim  of  lien,  310. 
daughter  of,  as  agent,  159,  note, 
death  of. 

before  filing  claim,  effect  of,  292,  note, 
in  action  to  foreclose  mechanic's  lien,  634. 
default  judgment  against,  756. 

directing  sale  of  entire  building  on  foreclosure  of  lien,  765. 
distinction  between,  and  employer  or  purchaser,  467. 
estoppel.     See  tit.  Evidence. 

of,  by  acts  of  reputed  owner,  40. 
evidence  of  misrepresentations  of,  as  to  actual  completion,  672. 
failure  to  file  notice  of  completion  or  cessation  of  work,  effect,  382. 
general  obligations  of. 
as  to,  generally,  478. 

application  of  payments  by  subclaimauts,  485. 
application  of  statutory  provisions. 
as  to,  generally,  481. 

in  case  of  valid  statutory  original  contract,  481. 
liability  of  owner  on  abandonment  of  valid  contract,  481,  note, 
where  liability  of  owner  is  not  established,  482. 
where  owner  completes  work,  482. 
as  a  stakeholder,  490. 
destruction  of  building.     See  tit.  Destruction  of  building. 

as  to  liability  on,  484. 
duty. 

to  file  statutory  original  contract,  479. 
to  see  that  bond  of  contractor  is  filed,  479. 
to  withhold  payments,  479. 
false    representations    by    owner    as    to    completion    of    building, 
liability  under,  500. 


988  GENERAL    INDEX. 

OWNER.  General  obligations  of  (continued), 
guaranty  not  a  prohibited  payment,  489. 
liability  for  costs  and  interest. 

as  to,  generally,  491. 

contest  by  owner,  costs  and  attorneys'   fees,  491,  note. 

deposit  with  county  clerk,  under  Oregon  statute,  491,  note. 

duty  to  deposit  money  in  court,  492,  note. 

interpleader,  491. 

payment  into  court,  interest  and  costs,  492,  note. 

right  to  come  into  court  and  bring  all  interested  parties,  491. 

where  no  tender  of  amount  due,  492. 

where  notices  served  to  an  amount  in  excess  of  contract  price, 
491. 
liability  of. 

fee   for   improvements   by  trespasser,   484. 

for  failure  to  file  contractor's  bond,  478,  note. 

not  beyond  contract  price,  482,  note, 
liability  on  breach  or  abandonment. 

as  to,  generally,  480. 

deduction  from  amount  found  due  claimants,  480,  note, 

statutory  provisions  as  to,  480. 
liability  under  valid  contract. 

as  to,  generally,  494. 

in  absence  of  notice  prescribed  by  statute,  496. 

portion   not  due  until  building  completed,  496. 

subclaimants  cannot  acquire  rights  against  owner,  495,  note, 
liability  under  void  contract. 

as  to,  generally,  497. 

penal  provision,  498. 

personal  liability  to  subclaimants  under,  499. 

statutory  measure  of  liability,  499. 
non-statutory  original  contract,  liability,  482. 
obligations  of,  on  contract  to  pay  instalments,  479. 
orders  on  owner's  mortgagee. 

as  to,  generally,  486. 

destruction  of  building,  effect  of,  486. 
payment  of  orders  of  contractor.     See  tit.  Payment. 

as  to,  generally,  485. 

on  judgment  for  material-man,  made  lien  on  unpaid  moneys,  486. 

splitting  demands,  485. 
payments  to  subclaimants.     See  tit.  Payment. 

as  to,  generally,  496. 

in  case  of  valid  contract,  496. 

last  payment,  496. 
personal  liability.    See  tit.  Personal  liability. 

as  to,  generally,  492. 

agency  of  person  emploj'iug  contractor  neither  express  nor  im- 
plied,   494. 


GENERAL   INDEX.  989 

OWNER.     General  obligations  of.     Personal  liability   (continued). 

creditors   who    are    not    found    to    be    lien-holders,    no    recourse 

against  owner's  propert}^,  493,  note, 
expulsion  of  contractor,  liability   on,  494. 
liability  on  rr-^tract  to  pay  in  instalments,  492,  note, 
owner  not  jicrsonally  liable,  493,  note, 
personal    judgment    against    owner    for    work    performed    under 

promise  to  pay,  492,  note, 
statute  does  not  create  contractual  relation,  493. 
void  contract  abandoned,  liability,  482. 
voluntary  paj^ment  of  contractor's  debts. 
as  to,  generally,  487. 

burden  of  proving  demands  paid  were  valid  debts,  488. 
failure  to  make  valid  defense,  489. 
only  obligation  to  contractor,  489. 

owner  no  right  to  set  up  his  opinion  as  to  legality,  488,  note, 
owner  not  liable  to  contractor  when,  488,  note, 
owner  pays  at  own  risk.  488,  note. 

surety  on   contractor's  bond,  liability   for  attorneys'   fees,  488, 
note. 
general  rights  of. 
as  to,  generally,  469. 
against  contractor, 
as  to,  generally,  469. 

abandonment  bj^  contractor,  right  to  complete  construction,  476. 
completion  of  contract  by  owner,  476. 
damages  for  delaj'  in  performance, 
as  to,  generally,  475. 
costs  and  expenses  reasonabl_y  necessary  to  conform  work  to 

original   contract,  475,  note, 
exclusion  of  damages  for  delay,  475,  note, 
liquidated  damages,  stipulation  for,  literal   enforcement.  475, 

note, 
not  recoverable  where  contract  was  modified   l)y  mutual  cou- 

sent,  475,   note, 
recovery  by  owner  of  excess  of  contract  price,  475,  note, 
when  owner  entitled  to,  against  contractor  for  delay,  475. 
general  rule  as  to  non-payment  of  instalments,  470. 
in  case  of  mutual  abandonment  of  work,  477. 
non-payment  of  instalments,  general  rule  as  to,  470. 
offsets  and  counterclaims.     See  tit.  Offsets  and  counterclaims, 
as  to,   generally,   471. 
against  different  payments.     See  "  Offsets  and  counterclaims 

against  different  payments,"  this  title, 
completion  payment.  471. 
final   payment,   472. 

in  case  of  valid  statutoiv  original  contract.  471. 
rights  as  to  credits  as  against  original  contractor,  471,  note. 


990  GENERAL   INDEX. 

OWNER.     General  rights  of.     Against  contractor   (continued), 
offsets  and  counterclaims  against  different  payments. 
as  to,  generally,  472. 
abandonment  by  contractor,  on,  473. 
completion  payment,  474. 
final  payment,  473. 

items  of  damages  for  failure  to  complete  in  time,  473. 
payments. 

as  to,  generally,  478. 

subclaimants  cannot  complain  of,  when,  478. 
right  to. 

cancel  contract,  470. 

complete  construction  upon  abandonment,  476. 
materials  upon  abandonment,  477. 
retain  fund,  470. 
rights  as  against  others,  477. 
statutory  rights,  469. 
how  far  subclaimants  are  bound  by  terms  of  contract,  246. 
immaterial  variance  as  to  purchasing  directly,  713. 
implied  contract,  159. 
infant  and  guardian  as,  467,  note. 

interest  of,  not  liable  under  contract  with  lessee  of  mine,  468,  note. 
judgment  against,  by  general  creditors,  547. 
knowledge  of. 

improvement  by,  629. 
need  not  be  stated  in  claim  of  lien,  309. 
leasing  mine  in  small  blocks,  468,  note, 
liability  of. 

on  contractor's  failure  to  perform,  289. 
under  contract,  244,  note, 
limitation  of  power  of  legislature,  245. 
lumber  and  workmanship  below  contract  requirements,  liability  for, 

247. 
may  set  off  costs  and  interest  against  contractor  when,  769. 
name  of.    See  tit.  Names  required  to  be  stated  in  claim. 

or  of  reputed,  must  be  correctly  stated  in  claim  of  lien,  688. 
to  be  set  out  in  claim  of  lien,  638. 
necessary  party  defendant  to  foreclose  mechanic's  lien,  605. 
no  privity  of  contract  between,  and  subcontractor,  73. 
not  liable  for  attorneys'  fees  when,  777. 

not  necessary  that  person  contracting  for  building  shall  be,  15!». 
notice  filed  with,  by  subcontractor,  gives  priority  of  lien  on  fund, 

461,  note, 
notice   of   non-responsibility   by.     See   tit.  Notice   of   non-responal- 

biUty. 
notice  to.    See  tit.  Notice  to  owner, 
as  condition  of  lien,  292,  note. 


GENERAL   INDEX.  991 

OWNER     (continued). 

objecting  to  non-joinder  of  contractor,  799. 

occupancy  of  building  which   is  neither   exclusive   nor   inconeistent 

with  work,  effect  of,  385,  note. 
offer  to  pay  amount  due  contractor,  genera)  creditors  not  incladcd, 

547. 
on  abandonment  of  contract,  246. 
on  substantial  compliance  with  contract,  250. 

owner's  redress  for  failure  to  comply  with  terms  of  contraL-t,  248. 
payment.    See  tit.  Payment, 
proof  of  knowledge  of,  680. 
recovery  of  costs. 

against,  769. 

by,  when,  769. 
redress  for  failure  to  comply  with  terms  of  contract.  248. 
relation  between,  and  architect,  111. 
reputed.     See  tit.  Reputed  owner. 

name  of.     See  tit.  Names  required  to  be  stated  in  claim, 
request  of. 

findings  as  to,  sufficient  to  support  judgment  when,  747. 

under  void  statutory  original  contract,  627. 
service  of  notice  on,  not  presumed  on  appeal,  794. 
subclaimants  limited  to  what  sum,  290. 
valid  contract. 

as  notice,  245. 

not  entirely  broken  by  malfeasance  or  nonfeasance  of  contractor, 
249. 
validity  of  deficiency  judgment  not  involved  on  appeal  when,  795. 
value  of  work  done  and  material  furnished,  290. 
what  does  not  constitute  person  an,  468. 

work  must  be  done  and  material  furnished  by  contract   with,  467, 
note. 

OWNER,    EMPLOYER,    OR   PERSON    CAUSING    IMPROVEMENT. 
See  tit.  Owner, 
as  to,  gemrally,  501. 
action. 

as  to,  generally,  523. 
and  claim  of  lien. 

distinction  and  purposes,  504. 
object  and  effect  of,  505. 
notice.    See  tit.  Notice, 
as  to,  generally,  523. 
creates  personal  obligation,  506. 

distinction  between  owner  and  employer  or  purchaser,  467. 
employer,  distinction  between,  and  owner  or  purchaser,  467. 


992  GENERAL   INDEX. 

OWNER,    EMPLOYER,    OR    PERSON    CAUSING    IMPROVEMENT 

(continued). 
form  and  contents  of  notice. 
as  to,  generally,  524. 
construction   of,   524. 
effect  of  several  notices  served,  524. 
how  far  rules  applicable,  525. 
present  provision  as  to  notice,  524,  note, 
statutory  requirements  of  notice. 

as  to,  generally,  enumeration,  525. 

notice  attaches  only  for  amount  actually  due,  526,  note. 

sufficiency  of  notice,  526. 

under  act  of  1862,  525,  note,  526,  note, 
garnishment.     See   tit.  Garnishment. 
as  to,  generally,  507-509. 
notice  authorized  by  statute,  509,  note, 
under  statute  of  1862,  509,  note. 
general  rights  upon  service  of  notice. 
as  to,  generally,  510. 

claim  of  lien  is  equivalent  to  notice  to  owner,  512. 
earlj-  statutes  in  California,  511. 
early  statutes  respecting,  511. 

effect  of  notice  on  payments  already  made  or  assigned,  516-518. 
non-statutory  original  contract,  515. 
on  payment  by  note,  518. 
payment  by  note,  518. 
relation  to  provisions  as  to  premature  payment. 

as  to,  generally,  5.19. 

criticism  of  doctrine,  519,  note. 

waiving  certificate  of  architect,  520. 
right,  personal,  511. 
service  of  notice  on  public  trustees. 

as  to,  generallj^  521. 

additional  to  remedy  on  bond,  522. 

notice  given  to  trustee  of  state  building,  522. 

to  trustees  of  state  building,  522. 
under  non-statutory  original  contract,  515. 
under  valid  contract,  generally,  512. 
under  valid  original   contract. 

as  to,  generally,  513. 

on  abandonment,  514. 
under  void  statutory  original  contract,  514,  515,  note, 
valid  statutory  original  contract. 

as  to,  generally,  513,  514. 

abandonment  of,  notice,  514. 

notice  served  upon  owner  under,  515,  note. 


GENERAL   INDEX.  993 

OWNER,    EMPLOYER,    OR    PERSON    CAUSING    IMPROVEMENT 

(continued). 
in  case  of  valid  statutory  original  contract,  510. 
in  nature  of  garnishment,  506,  note, 
infant  and  guardian  as  owners,  467,  note, 
itoinized  account  not  required,  505,  note. 
joint  contractors,  apportionment,  523. 
notice  to  owner  or  employer, 
as  to,  generally,  502. 
and  claim  of  lien, 
as  to,  generally,  504. 
amendment  of  1887,  504,  note, 
creating  personal  obligation,  506. 
distinction  and  purpose,  504. 

garnishment.     See  tits.  Attachment;  Garnishment, 
as  to,  generally,  507-509,  note, 
under  act  of  1862,  509,  note, 
itemized  account  not  required,  505,  note, 
notice  in  nature  of  garnishment,  506. 
object  and  effect  of,  to  owner,  505. 
section  as  it  stood  in  1885,  504,  note, 
statutory  construction,  506,  note, 
excessive  claim  in  notice  of  claim  to  owner,  502,  note, 
history,  502. 

statutory  provision  in  California, 
as  to,  generally,  503. 

amendment  inserting  word    "  reputed  "   before   word    "  owner," 
503,  note, 
sufficiency  of  signature  to  notice,  502,  note. 
owner. 

and  reputed  owner,  468. 

distinction  between,  and  employer  or  purchaser,  467. 
general  obligations  of,  and  employer, 
as  to,  generally,  478. 

application  of  payment  by  subclaimants,  485. 
destruction  of  building,  on,  484. 
duty  to. 

file  statutory  original  contract,  479. 
see  to  it  that  bond  of  contractor  is  filed,  479,  note, 
withhold  payments,  479. 
guaranty  not  a  prohibited  payment,  489. 
liability  for  costs  and  interest.     See  tits.  Cost;  Interest, 
as  to,  generally,  490. 

contest  by  owner,  costs  and  attorneys'  fees,  491,  note, 
deposit  with  county  clerk  under  Oregon  statute,  491,  note, 
duty  to  deposit  money  in  court,  492,  note. 
Interpleader,  491. 
Mech.  Liens  —  63 


994  GENERAL   INDEX. 

OWNER,    EMPLOYER,    OR    PERSON    CAUSING    IMPROVEMENT. 

Owner.      General   obligations   of,  and   employer.      Liability 
for  costs  and  interest   (continued). 

owner  may  come  into  court  and  bring  all  interested  parties, 
491. 

payment  into  court,  interest  and  costs,  492,  note. 

tender  of  amount  due,  or  offer  to  allow  judgment,  492. 

where  notices  are  served  to  an  amount  in  excess  of  contract 
price,  491. 
liability  for  failure  to  file  contractor's  bond,  478,  note, 
liability  of  fee  for  improvements  by  trespasser,  484. 
liability  of,  on  breach  or  abandonment. 

as  to,  generally,  480. 

application  of  statutory  provision,  481. 

in  case  of  valid  statutory  original  contract,  481. 

not  beyond  contract  price,  482,  note. 

on  abandonment  of  valid  contract,  481,  note. 

statutory  provisions,  480. 

what  constitutes  abandonment,  481. 

where  liability  of  owner  is  not  established,  482. 

where  owner  completes  work,  482. 
liability  of  owner  or  employer  under  valid  contract. 

as  to,  generally,  494,  497. 

in  absence  of  notice  prescribed  by  statute,  496. 

portion  not  due  until  building  completed,  496. 

subclaimant  cannot  acquire  any  right  against  owner,  495,  note, 
non-statutory  original  contract.  482. 
obligation   of. 

on  contract  to  pay  instalments.  479,  note 

to  withhold  moneys,  480,  note, 
orders  on  owner's  mortgagee. 

as  to,  generally,  486. 

destruction  of  building,  effect  of,  486. 
owner  as  stake-holder,  490. 
payment  of  orders  of  contractor. 

as  to,  generally,  485. 

making  judgment  in  favor  of  material-man  on  unpaid  moneys, 
486. 

splitting  demands,   485. 
payment  to  subclaimants. 

as  to,  generally,  496. 

in  case  of  valid  contract,  last  payment,  496. 
personal  liability.     See  tit.  Personal  liability. 

as  to,  generally,  492. 

agency,  494. 

expulsion  of  contractor,  494. 

owner  not  personally  liable,  493,  note. 

statute  does  not  create  a  contractual  relation,  493. 


GENERAL   INDEX.  995 

OWNEE,    EMPLOYER,    OR    PERSON    CAUSING    IMPROVEMENT. 

Owner.     General  obligations  of,  and  employer  (continued). 
Toid  contract. 

abandoned,  482. 

false  representation  by  owner  as  to  completion  of  building, 
effect  on  liability,  500. 

liability  of  owner  under,  497. 

penal  provision,  498. 

personal  liability  to  subclaimants  under,  499. 

statutory  measure  of  liability  under,  499. 
voluntary  payment  of  contractor's  debt 

as  to,  generally,  487. 

burden  of  proving  demands  paid  were  valid  debts,  488. 

failure  to  make  valid  defense,  489. 

owner  is  not  liable  to  contractor  when,  488,  note. 

owner  no  right  to  set  up  opinion  as  to  legality  of  lien,  488, 
note. 

owner  pays  subclaimants  at  own  risk,  488,  note. 

owner's  only  obligation  to  contractor  is  to  pay,  489. 

surety  on  contractor's  bond,  liability  for  attorneys'  fees,  etc., 
488,  note. 
general  rights  of,  and  employer, 
as  to,  generally,  469. 
abandonment. 

mutual,  in  case  of,  477. 

right  of,  to  complete  construction  upon,  476. 

right  to  materials  upon,  477. 
completion  of  contract  by  owner,  476. 
damages  for  delay  in  performance. 

as  to,  generally,  475. 

costs  and  expenses  reasonably  necessary  to  make  work   con- 
form to  contract,  475,  note. 

exclusion  of  evidence  as  to,  for  delay,  475,  note. 

for  delay  in  completing  buildings,  475,  note. 

liquidated,  stipulation  for,  literal  enforcement,  475,  note. 

not  recoverable  when,  475,  note. 

recovery  by  owner  of  excess  of  cost  price,  475,  note. 

where  owner  is  entitled  to,  against  contractor  for  delay,  475, 
note, 
general  rule  as  to  non-payment  of  instalments,  470. 
indemnifying  owner  against  liens,  effect  on  material-man,  477, 

note, 
materials,  right  to,  upon  abandonment,  477. 
offsets  and  counterclaims.    See  tit.  Offsets  and  counterclaims. 

as  to,  generally,  471,  472. 

abandonment  by  contractor,  etc.,  473. 

completion  payment,  471,  474. 


996  GENERAL   INDEX. 

OWNER,    EMPLOYER,    OR    PERSON    CAUSING    IMPROVEMENT. 

Owner.      General    rights    of,    and    employer.      Offsets    and 
counterclaims  (continued), 
entitled  to  credit  for  payments  of  claims  before  filing  lien,  472. 
final  payment,  472,  473. 

in  case  of  valid  statutory  original  contract,  471. 
items  of  damage  for  failure  to  complete  in  time,  473. 
rights  of,  to  credits,  as  against  original  contractor,  471,  note, 
payments.    See  tit.  Payment. 
as  to,  generally,  478. 

subclaimants  cannot  complain  of  payments  when,  478. 
right  to  complete  construction  upon  abandonment,  476. 
rights  against  contractor, 
as  to,  generally,  469. 
statutory  provisions,  469. 
rights  against  others,  477. 
in  contract  to  perform  labor  on  mine,  468,  note, 
infant  and  guardian  as,  467,  note. 

interest  of,  not  liable  under  oontract  with  lessee  when,  468,  note, 
leasing  mine  in  small  blocks,  468,  note. 
"  reputed  owner  "  synonymous  with  what,  468,  note, 
right... 

to  cancel  contract,  470. 
to  retain  fund,  470. 
work  must  be  done  and  material  furnished  by  contract  with,  467, 
note, 
payment  by.     See  tit.  Payment, 
provision  applicable  when. 
as  to,  generally,  510. 

in  case  of  valid  statutory  original  contract,  510. 
purchaser,  distinction  between,  and  owner  and  employer,  467. 
statutory  requirements  of  notice,  525. 
sufficiency  of  notice,  526. 
time  of  giving  notice,  523. 

work  must  be  done  and  material   furnished  by  contract   with,  467, 
note. 

OWNER    OF    THE    LAND. 

person  the  mechanic's-lien  law  deals  with,  6,  note, 
reputed,  cannot  bind  property  when,  6,  note. 

OWNER'S    EMPLOYEE. 

variance  between  pleading  and  jsroof  immaterial  when,  723. 

OWNER'S    LABORERS.      • 

action  to  foreclose  lien  by,  589. 
non-presentation  of  claim,  761,  note. 


GENERAIi   INDEX.  997 

OWNER'S    MATERIAL-MAN.     See  tit.  Material-man. 

OWNERSHIP. 

allegation  aa  to  conveyance,  629. 

allegation  of,  in  action  to  foreclose  mechanic's  lien,  628. 

at  time  of  filing  claim,  321. 

change  of. 

does  not  necessitate  new  claim  of  lien,  299. 

effect  on  claim  of  lien,  321. 
failure  to  allege  that  name  of  owner  was  unknown,  628,  note, 
false  representation  as  to,  efifect  on  lien,  407. 
reputffl,  conveyances  on  record  as  evidence  of,  688,  note. 

PAPERS. 

reference  to,  in  statement  of  claim,  339. 

PAROL. 

e\  idence.     See  tit.  Evidence. 

time  for  performance   of  non-statutory   contract  may  be   enlarged 
by,  261,  note. 

PARTICULAR    CLAUSES.     See  tit.  Contract. 

PARTIES. 

having  prior  claim  on  fund,  objections  against,  725,  note, 
misjoinder  of.    See  tit.  Misjoinder  of  parties, 
on  appeal.    See  tit.  Appeal, 
to  action  to  foreclose  mechanic's  lien. 
defendant. 

as  to,  generally,  604. 

both  spouses  necessary  where  community  property  involved,  605, 
note. 

contractor,  606. 

copartners. 

as  to,  generally,  606. 
death  of  one,  606. 

employers,  606. 

estoppel.     See  tit.  Estoppel. 

grantee  of  mortgage  assuming  the  mortgage  debt,  686. 

holdors  of  prior  interests  and  liens,  609. 

infants,  appear  by  guardian,  610. 

lien  claimant,  608. 

mortgagees,  610. 

non  joinder  of.     See  tit.  Non-joinder. 

on  community  property,  605,  note. 

owner  as,  605. 

subcontractor,  608. 

wives  of  partners  not  necessary  parties,  605,  note. 


998  GENERAL   INDEX. 

PARTIES.     To  action  to  foreclose  mechanic's  lien   (continued). 
intervener.     See  tit.  Intervention, 
non-joinder  of.     See  tit.  Non-joinder, 
raising  objections  for  want  of. 
as  to,  generally,  603. 
estoppel,  603. . 

not  to  be  raised  on  introduction  of  evidence,  603,  note, 
plaintiff.     See  tit.  Plaintiff, 
as  to,  generally,  602. 

partner  as  assignee  of  partnership,  602. 
statutory  provisions, 
as  to,  generally,  602. 
estoppel,  603. 
object  of  provision,  603. 
raising  objections,  603. 

where  there  are  a  number  of  adjoining  mining  claims,  603. 
to  contract.     See  tits.  Corporation;  Executor;  Guardian, 
competency  of,  157. 

husband  and  wife,  community  property,   161,  note, 
signature  by  one,  162,  note. 

PARTITION. 

added  to  a  building  as  a  fixture  is  a  "  repair,"  121. 

PARTNER.     See  tit.  Partnership. 

assignee  of  partnership  as  plaintiff,  602,  note, 
assignment  of  debt  due  from  partnership  to,  539,  note, 
defendant  in  action  to  foreclose  mechanic's  lien,  wife  of,  not  neces- 
sary party,  605,  note. 

PARTNERSHIP.     See  tit.  Partner. 

assignment  of  debt  from,  to  one  partner,  539,  note. 

claim  of  lien  by,  540. 

partner  assignee  of,  as  plaintiff,  602,  note. 

PARTS    OF    DAY.     See  tit.  Day. 

PATENT.     See  tit.  Agricultural  patent, 

PATTERN.     See  tit.  Tools. 

referring  to  adjoining  house  as  a,  227. 

use   in    the    manufacture    of    couplings,    not    subject    to    mechanic's 
lien,  90. 

PAYMENT.      See   tits.  Owner;    Owner,   employer,   or  person   causing 
improvement;  Premature  payments.  ■ 
as  to,  generally,  195. 
a  condition  precedent  when,  270. 


GENERAL   INDEX.  099 

PAYMENT    (continued). 

already  made  or  assigned,  effect  of  notice  of  claim  of  lien   upon, 

516-518. 
application  of. 

as  to,  generally,  179,  272,  note,  478. 

by  subclaimants,  485. 

creditor  has  right  to  make,  197,  note. 

for  benefit  of  surety,  557,  note. 

for  extras  where  there  is  a  mortgage,  197,  note. 
by  note. 

effect  of  notice  of  claim  of  lien  upon,  518. 

receipt  as  evidence  of,  677. 
condition  precedent  to. 

as  to,  generally,  196. 

waiver  of,  196. 
contractor's  order  in  favor  of  material-man  where  building  destroyed 

by  fire,  196,  note, 
duty  of  owner  to  withhold,  479. 
equal  application  for  two  houses,  198,  note, 
finding  as  to,  sufficient  to  support  judgment  wher    746. 
immaterial  variance  as  to,  713. 

in  land,   under  non-statutory   original   contract,   206. 
in  money,  requirement  that  shall  be,  unconstitutional,  39. 
into  court.    See  tits.  Deposit;  Payment  into  court, 
made  before  commencement  of  work,  independent  promise,  196,  note, 
made  by  owner,  sufficient  when,  662. 

memorandum  of  contract  must  contain  provision  for,  241. 
no  time  fixed  in  agreement  for,  construction,  170,  note, 
of  balance  of  fund  on  deposit  in  court,  729. 
of  lien  claims  as  defense  to  mortgage  foreclosure,  664. 
of  order  of  contractor,  splitting  demands,  485. 
partial,  by  material  furnished  by  owner,  216,  note, 
premature.     See  tit.  Premature  payments. 

as  to,  generally,  205. 

relation  of  provision  as  to  notice  to,  519. 
setting  up,  in  answer.     See  tit.  Answer. 

to  foreclosure  of  lien,  664. 
subclaimants  cannot  complaint  of,  when,  478. 
to  be   made   on   completion   of  building,   destruction   by   fire,   effect, 

196,  note, 
to  contractor's  material-man  at  former's  request,  196,  note, 
to  subclaimants  under  valid  contract,  496. 
under  altered  contract,  263. 

under  nonstatutory  original  contract.     See  tit.  Non-statutory  origi- 
nal contract, 
under  statutory  original  contract. 

as  to,  generally,  2U7. 


1000  GENERAL   INDEX. 

PAYMENT.     Under  statutory  original  contract  (continued), 
statutory  provisions, 
as  to,  generally,  207. 

contract  not  to  be  payable  in  advance  of  work,  209. 
contract  price  payable  in  instalments  or  after  completion,  210. 
general  rule  as  to,  212. 

illustrations  as  to  sufficient  compliance  with  statute,  213. 
in  money,  216. 
object  of  provision,  208,  212. 
owner  pays  at  own  risk,  212. 

partial,  may  be  safely  made  by  owner  when,  212. 
provision  for  payment. 

of  bills,  sufficiency  of,  211. 
to  material-men,  210. 
provision  for  withholding  percentage  of  contract  price,  211. 
scope  and  object  of  provisions,  208. 
stipulated,  offsets  against,  211,  note, 
substantial  compliance  required,  and  effect  of,  208. 
third  payment  to  contractor,  210. 
twenty-five  per  cent  after  thirty-five  days  from  completion.     See 

tit.  Twenty-five  per  cent, 
what  not  a  substantial  compliance  with  statute,  214. 
to  be  in  money,  216. 
voluntary,  of  contractor's  debts, 
as  to,  generally,  487. 

burden  of  proving  that  demands  paid  were  valid  debts,  488. 
owner  has  no  right  to  set  up  his  opinion  as  to  the  legality  of  lien, 

488,  note, 
owner  pays  at  his  own  risk,  488,  note, 
waiving  certificate  of  architect,  520. 
when  due,  acceptance  of  work,  196,  note. 

PAYMENT    INTO   COURT.     See  tit.  Deposit. 
interest  and  costs  on,  492,  note, 
relieves  from  interest.     See  tit.  Interest. 
as  to,  generally,  753,  note,  755. 

PECULIARITIES. 

of  mechanics'  liens,  15. 

PENAL    PROVISION. 

in  void  contract,  498. 
strictly  construed,  26,  29, 

PENALTY. 

for  conspiracy  as  to  contract  price  of  building,  243. 
in  statutory  original  contract,  construction  of,  176. 
provision  imposing,  in  statutory  original  contract,  207. 


GENERAL   INDEX.  1001 

PENDENTE    LITE. 

interest,  610. 

PERCENTAGE. 

of  contract  price,  withholding.     See  tit.  Twenty-five  per  cent. 

PERFORMANCE. 

finding  as  to,  738. 

immaterial  issue  when,  742. 

of  contract.    See  tit.  Performance  of  contract. 

parol  evidence  of,  of  contract,  693. 

prevention  of.     See  tit.  Prevention  of  performance. 

as  to,  generally,  269,  note. 

allegation  of,  621. 

by  injunction,  269,  note. 

finding  as  to,  738. 
rule  as  to  what  shall  constitute,  is  indefinite,  277. 
substantial,  finding  as  to,  740. 

PERFORMANCE   OF   CONTRACT.     See  tit.  Performance. 

as  to,  generally,  265. 
completion. 

means  what,  265. 

"  of  mining  claim,"  279. 

term  means  what,  265. 
contradictory  findings  as  to,  744. 
conveniences,  278. 

erection  of  part  of  structure  only,  279. 
excuses  for  non-performance,  268. 
general  rule  and  conditions,  268. 

of  non-statutory,  time  of,  may  be  enlarged  by  parol,  261,  note, 
original  contract. 

valid,  266. 

void,  266. 
payment,  condition  precedent  when,  270. 
performance  of  warranty,  271. 

prevention  of.     See  tit.  Prevention  of  performance. 
slight  difference  in  value,  278. 
substantial  performance  required,  274,  276. 
time  of  performance,  267. 
"  trifling  imperfection,"  meaning  of,  272. 
when  completed,  266. 
when  no  time  specified,  267. 

PERMISSION    TO    GRADE. 

of  city  council,  when,  130,  note. 

of  superintendent  of  streets,  when,  130,  note. 


1002  GENERAL   INDEX. 

PERSON   ACTING    IN   REPRESENTATIVE    CAPACITY. 

authority  to  confer  right  to  mechanic's  lien,  415,  note. 

PERSON   CAUSING   IMPROVEMENT.     See  tit.  Owner,  employer,  or 
person  causing  improvement. 

PERSON    CONTRACTING. 

variauce  as  to,  effect,  717,  721. 

PERSON    ENTITLED. 

as  to,  generally,  50. 

before  present  constitution  enacted,  50,  ,iote. 
classification  as  to  relation  of  owner  or  employer, 
as  to,  generally,  52. 

important  consequences  following  distinctions,  52. 
constitutional  and  legislative  classifications  of,  50. 
distinction  between  classes  of  lienors,  51. 
individual  claimants, 
as  to,  generally,  53. 
corporation. 

is  a  "  person  "  entitled  to  lien,  53,  note. 

organized  to  manufacture  cannot  hold  lien  for  labor,  53,  note, 
each  partner  has  right  to  create  lien,  53,  note, 
foreign  corporation. 

entitled,  same  as  domestic,  to  lien,  53,  note, 
filing  of  articles,  when  sufficient,  53,  note, 
individual  furnishing  materials  under  name  of  a  company,  right 

to  lien  in  individual  name,  53,  note. 
municipal   corporation   not   entitled,   unless   especially   authorized, 
53,  note, 
legislative  classifications  of,  50. 

PERSON    IN    POSSESSION. 

as  agent  of  owner,  531,  534. 

PERSON   PERFORMING   LABOR.     See  tit.  Laborer. 

is  a  generic  expression  more  extensive  in  meaning  than  "  laborer," 

101,  note, 
statutory  provisions  as  to,  100. 

PERSON    UNDER   DISABILITY. 

creation  of  right  to  mechanic's  lien  by,  415,  note. 

PERSONAL    ACTION. 

right  of,  by  subcontractor  against  contractor,  76. 


GENERAL   INDEX.  1003 

PERSONAL    JUDGMENT. 

as  to,  generally,  730. 
against. 

contractor,  notice  of  appeal,  787. 

party  liable,  758,  note. 

wife,  not  reviewable  on  appeal  without  exceptions,  792,  note, 
allowed  in  action  to  foreclose  lien,  584,  note, 
death  of  owner,  recovery  against  estate,  761. 
execution  on,  778,  note. 

in  addition  to  decree  foreclosing  lien,  756,  note, 
in  foreclosure,  under  act  of  1864,  758,  note. 

in  sewer  improvement,  against  contractor,  error  when,  757,  note, 
jurisdiction   of  superior   court  to   render,  in   suit  to   foreclose   lien, 

49,  761. 
not  allowed  when,  758,  note, 
notice  to  owner  to  withhold  pa^-ment,  759. 
plaintiff  not  entitled  to  interest  prior  to,  755,  note, 
purchaser  of  property  assuming  debt,  against,  759. 
rendered  for  amount  due,  effect  of,  585,  note, 
right  to  recovery  of,  756,  note, 
subclaimant  against  contractor,  default,  760. 
void  when,  758,  note, 
when  not  given,  760. 
when  not  required,  756. 
when  obtained,  757. 

PERSONAIj    LIABUjITY.    See  tits.  Owner;  Owner,  employer,  or  per- 
son causing  improvement, 
of  agent,  536. 
one  of  the  tests  of  "  original  contractor,"  60. 

PERSONAL    PROPERTY. 

lease  of,  to  persons  working  mine,  effect,  441,  note. 

PICKS.     Sec   tit.  Tools. 

lien  for  sharpening,   124,  note. 

PIPE  LINE. 

for  an  irrigation  company,  lieu  upon,  140. 

PIT. 

sunk  in  a  mining  claim  is  a  "  structure,"  139. 

PLACE. 

of  commencing  action  to  foreclose  lien, 
as  to,  generally,  597. 
amount  less  than  jurisdictional  limit,  593. 


1004  GENERAL   INDEX. 

PLACE.     Of  commencing  action  to  foreclose  lien  (continued), 
by  trustee  in  bankruptcy,  598,  note, 
in  Federal  courts,  599. 
jurisdiction  of  superior  court,  598. 
statutory  provisions,  597. 

PLAINTIFF. 

cannot  recover  attorneys'  fees  out  of  proceeds  when,  772,  note. 

construed  to  mean  "  claimant,"  369. 

not  entitled  to  interest  prior  to  verdict,  755,  note. 

PLANS    AND    SPECIFICATIONS.     See  tit.  Architect, 
contract  for  drawing,  156,  note, 
false  reference  to,  163. 
referred  to. 

in  contract. 

as  signed  by  the  parties,  when  not  signed,  effect  of,  228,  note, 

233. 
become  part  thereof,  must  be  filed,  230, 
but  not  filed. 

cannot  be  taken  advantage  of  by  answer,  660. 
not  available  in  answer,  663. 
in  memorandum  filed,  239. 
referred  to   in   statutory   original   contract   as   having  been   signed, 
contract  inchoate  when,  227. 

PLEADING    AND    PEOCEDUEE.     See  tit.  Practice. 
as  to,  generalh',  583. 

admissions  in,  sufficient  to  support  finding,  672. 
answer.     See  tit.  Answer, 
appeal.     See  tit.  Appeal, 
assignment  of  claim,  538,  note. 

attorneys'  fees.    See  tits.  Appeal;  Costs  and  attorneys'  fees, 
complaint  in  action  to  foreclose  lien.     See  tit.  Complaint, 
consolidation  of  actions.     See  tit.  Consolidation  of  actions, 
costs.    See  tits.  Attorneys'  fees;  Costs, 
decree  of  court.     See  tit.  Decree, 
demurrer  to  complaint.     See  tit.  Demurrer. 
estoppel.    See  tit.  Estoppel. 

as  to,  generally,  561. 
evidence.     See  tit.  Evidence, 
facts  not  alleged,  671,  note, 
findings  of  court.     See  tit.  Findings, 
forms  of  pleadings,  etc.     See  tit.  Forms, 
general  rules  as  to  pleading. 

as  to,  generally,  614,  615. . 

certificate  of  architect,  621. 


GENERAL   INDEX.  1005 

PLEADING  AND  PROCEDURE.     General  rules  as  to  pleading  (con- 
tinued). 

common  counts,  617. 

completion  of  building,  620. 

condition  precedent,  620. 

contract,  616. 

debt  due,  622. 

express  contract,  639. 
in  action  to  foreclose  mechanic's  lien.     See  tit.  Complaint. 

general  principles  of,  614. 

stating  cause  of  action, 
as  to,  generallj',  614. 
general  rule,   615. 
in  contract  for  liquidated  damages  against  sureties,  558,  note, 
parties  to  actions.     See  tit.  Parties. 

place  of  foreclosure.     See  tit.  Time,  place,  and  manner  of  commen- 
cing action  to  foreclose  lien. 
redemption  of  premises.    See  tit.  Sale  and  redemption. 
remedies.     See  tit.  Remedies. 

non-payment  of  indebtedness  to  plaintiff,  622. 

premature  payment  to  contractor  by  owner,  623. 

prevention  of  performance,  621. 

technical  defects  cured  by  acts  of  parties,  619. 
sale  of  premises.     Sec  tit.  Sale  and  redemption, 
time    to   commence    action.      See   tit.  Time,   place,    and   manner   of 

commencing  action  to  foreclose  lien, 
trial.    See  tit.  Trial  and  practice, 
variance.    See  tit.  Variance. 

as  to,  generally,  719. 

between,  and  claim  or  proof.     See  tit.  Variance. 

immaterial  when,  720-723. 

in  pleading  and  proof.     See  tit.  Variance. 

POLES. 

set  in  ground  as  part  of  an  electric  line,  lien  upon,  140. 

POSTING. 

how  to  be  made. 

as  to,  generally,  445. 

in  conspicuous  place,  445. 

in  front  of  building  bordering  on  public  street,  sufficiency  of,  445, 

note. 
on  partition-wall  several  feet  back  from  street,  sufficiency  of,  445, 
note. 
notice  of  non-responsibility. 
when  to  be  made. 

as  to,  generally,  443,  444. 

within  three  days  after  knowledge,  sufficiency  of,  443,  note. 


1006  GENERAL   INDEX. 

POWER. 

of  architect.    See  tit.  Architect. 

use  for  blasting  in  constructing  flume,  etc.,  or  on  a  mine,  subject 
of  lien,  90. 

PRACTICE.    See  tits.  Pleading  and  procedure;  Trial. 

as  to,  generally,  724. 

bankruptcy  proceedings,  725,  note. 

consolidation.     See  tit.  Consolidation  of  actions. 

continuance,  724,  note. 

costs  of  claim  of  lien  not  demandable  on  tender  before  suit,  725,  note. 

default,  relief  from,  discretion,  724,  note. 

dismissal,  where  defendants  fictitious,  725,  note. 

estoppel.     See  tit.  Estoppel, 

as  to  attorneys'  fees,  725,  note. 

by  stipulation,  724,  note, 
failure  to  serve  cross-complaint,  725,  note, 
fictitious  defendants,  dismissal,  725,  note, 
granting  motion  to  strike  out,  725,  note. 

objections  against  persons  having  prior  claims  on  fund,  72.5,  note, 
preference  in  calendar,  725,  note, 
stay  of  proceedings,  725,  note, 
sufficiency  of  particular  errors  of  law,  724,  note. 
tender  as  admission  of  amount  due,  725,  note. 

PRACTITIONER. 

only  safe  course  for,  2. 

PRELIMINARY    WORK. 

no  lien  allowed  for,  130. 

PREMATURE    PAYMENTS,      See    tits.  Non-statutory    original    con- 
tract; Payment, 
as  to,  generally,  564. 

advances  must  be  properly  made,  565,  note. 

bond  providing  that,  shall  not  affect  obligation  of  sureties,  565,  note, 
final  instalment,  567. 
intermediate  instalments,  566. 
no  loss  to  contractor  or  surety  by  reason  of,  does  not  release  surety, 

564,  note, 
recent  broadening  of  the  doctrine  of,  206. 
sureties, 

are   exonerated    when,   564. 
not  exonerated  by,  when,  565,  note, 
not  injured  by,  when,  565,  note. 
to  contractor  by  owner,  allegation  of,  in  complaint  to  foreclose  lieo, 
623. 


GENERAL   INDEX.  1007 

PREMATURE  PAYMENTS   (continued), 
under  non-statutory  original  contract,  205. 
waiver  of  defense  of,  by  provision  in  bond,  565,  note. 

PREPARING    CLAIM. 

attorney's  fee  for,  775. 

PRESUMPTION. 

as  to  reasonableness  of  attorneys'  fees,  79.S,  note, 
none,  in  absence  of  allegation  that  statement  and  conditions  of  con- 
tract did  not  include  all  conditions,  335. 
Of  agency. 

overcoming,  678-680. 
raised  when. 

as  to,  generally,  534. 

person  claiming  to  be  agent  and  acting  on  land,  534. 
person  working  mine^  532. 
of  knowledge  of  subclaimants  of  valid  contract,  696. 
on  appeal.     See  tit.  Appeal. 
as  to,  generally,  792. 
as  to  defense  not  pleaded,  794. 
as  to  extent  of  land,  793. 
as  to  findings.     See  tit.  Findings, 
as  to  lien  on  real  property,  792. 
as  to  reputed  owner,  793. 
as  to  work  and  amount  found  due,  794. 
what  not  indulged, 
as  to,  generally,  794. 
agency  of  employers,  795. 
service  of  notice  on  owner,  794. 
that  building  is  attached  to  land  upon  which  erected,  325.  note. 

PREVENTION   OF   PERFORMANCE.     See  tit.  Performance. 

finding  as  to,  738. 

what  constitutes,  291,  note. 

PRICE. 

agreed,  statement  of  reasonableness  of,  341. 

claim  setting  forth  contract,  341,  note. 

equivalent  to  "  for  the  value,"  used  in  statute  giving  lien,  411. 

excessive  claim  for,  effect  on  lien,  579. 

express  and  implied  agreement  as  to,  340. 

PRINCIPAL. 

bound  by  notice  to  agent,  536. 

PRIOR    LIENS. 

notice  of  non-responsibility  not  required  when,  442. 


1008  GENERAL   INDEX. 

PRIOR    MORTGAGE. 

decree  of  sale  on,  762. 

PRIORITIES. 

as   to,   generally,   446. 

between  mechanics'  liens  and  other  estates  or  interests, 
as  to,  generally,  447. 

alteration  and  reformation  of  instruments,  460. 
contractors  and  subcontractors,  liens  of,  4.54. 
deed  of  trust  on  canal,  456,  note. 

distribution  of  fund,  order  of  priority  among  claimants,  462. 
doctrine   of  relation,  450. 
garnishment  by  creditor,  460. 
general  analysis  of  provision. 

as  to,  generally,  449. 

valid  or  void  original  contract,  449. 
general  rule,  455-458. 
grants  and  conveyances,  449. 
homestead,  against. 

as  to,  generally,  454. 

declaration  of,  does  not  defeat  right  of  lien,  455. 
lien  for  materials. 

as  to,  generally,  453. 

running  account,  time  begins  to  run  against  lien  when,  453,  note. 

where  work  done  or  materials  furnished   continuous  in  its  na- 
ture, 453,  note, 
lien   on  two  or  more  buildings. 

as  to,  generally,  462. 

statutory  provision  as  to  two  or  more  buildings  applicable,  462. 
liens  relate  back,  449,  note, 
mechanic's  lien.     See  tit.  Mechanic's  lien. 

and  mortgages,  299,  note. 

over  subsequent  liens,  457,  note. 

superior  to  earlier  mortgages  when,  457,  note, 
mortgage  lien.     See  tit.  Mortgage. 

attaches  when  instrument  executed,  458,  note. 

for  building  purposes,  448,  note. 

for  future  advances. 
as  to,  generally,  459. 

advances  must  be  properly  made,  460,  note, 
as  to  what  constitutes  "  further  advances,"  460. 

for  purchase  price,  458. 
mortgagee,  secretary  of  mining  corporation  for  whom  labor  per- 
formed, 457,  note. 
parts  of  day  taken  notice  of  as  to  priority,  455. 
provision  has  no  reference,  to  priority  between  claimants,  449,  note, 
reformation  and  alteration  of  instruments,  460. 


GENERAL   INDEX.  1009 

PRIORITIES.    Between  mechanics'  liens  and  other  estates  or  interests 
(continued). 
relation,  doctrine  of. 
as  to,  generally,  450. 

contractor  must  inform  himself  of  prior  liens,  451,  note, 
distinction  as  to  time  at  which  lien  attaches,  452. 
failure  to  perfect  lien  also  relates  back,  451,  note, 
in  lien  on  mine,  451. 
in  valid  and  void  contracts,  451,  note, 
lien  attaches  when,  451,  note. 

lien  cannot  attach  until  claimant  files  statement,  451,  note, 
statute  must  be  strictly  complied  with,  451,  note, 
rule   that   mechanic's  lien   attaches  to  building  in   preference   to 

prior  mortgage,  457,  note, 
statutory   statement   of  rule,  448. 
void  contract,  under,  454. 

when  lien  claimants  may  attack  prior  encumbrances,  460. 
findings  as  to,  737. 
inter  sese. 

as  to,  generally,  463. 

distribution  of  fund,  order  of  priority  among  claimants,  462,  note, 
effect  of  constitution  on  statutory  provision  as  to,  465. 
insufficient  proceeds,  prorating,  465. 
nature  of  provision, 
as  to,  generally,  464. 

where  valid  original  contract  is  abandoned,  464. 
prorating  whore  there  are  insufficient  proceeds,  465. 
statutory  provisions,  463. 

subordination  of  contractor  to  subclaimants,  464,  note, 
marshaling. 

assets.     See  tit.  Marshaling  assets. 

as  to,  generally,  447,  note, 
liens,  447,  note. 
of  lien  of  mortgage  on  land,  and  subordination  thereof  with  refer- 
ence to  the  building,  447,  note. 
Of  mechanics'  liens. 

as  to,  generally,  447,  note, 
over  mortgages  for  advances,  447,  note 
of  subcontractors  under  contractor,  77. 
priority  of  farm-laborers'  liens  on  crops,  447,  note, 
purchaser  having  notice  of  facts  affecting,  effect  on  application  of 

proceeds,  781. 
record  notice  limited  to  subsequent  mortgagees  and  purchasers,  447, 
note. 

PRIVILEGE. 

mechanic's  lien  is  a,  in  Oregon,  7,  note. 
Mech.  Liens  —  64 


1010  GENERAL  INDEX. 

PRIVITY. 

essentia]  element  to  a  valid  contract,  57. 

failure  of  complaint  to  foreclose  lien  to  show,  630,  note. 

PROBATE    PROCEEDINGS. 

evidence  of  want  of  notice  of,  676. 

PROCEDURE.     See  tit.  Pleading  and  procedure. 

PROCEEDS. 

application  of,  of  sale  to  junior  executions,  781. 

insufficient,  prorating,  46.5. 

purchaser  having  notice  of  facts  affecting  priorities,  781. 

PROFESSIONAL    SERVICES, 
on  a  mine. 

book-keeper  not  entitled  to  lien,  91,  note. 

cook  is  not  entitled  to  lien,  91. 

geologist  not  entitled  to  lien,  123,  note. 

lien  allowed  for,  when,  123,  note. 

mining  expert  not  entitled  to  lien,  123,  note. 

watchman,  not  entitled  to  lien,  127,  128,  note. 

PROMISE    TO    PAY. 

finding  as  to,  738. 

PROMISES. 

dependent  and  independent,  172. 

PROPERTY. 

correct  description. 

meaning  of,   34S,   note. 

under  statute  required,  347,  note. 
description  of.    See  tit.  Description  of  property  to  be  charged. 

in  claim  of  lien,  347. 
distinguished  from  "  object,"   133. 
divisions  of,  133. 
sufficient  for  identification,  348. 
under  early  statute,  348,  note. 

PRORATING. 

in  case  of  insufficient  proceeds,  465. 

PROSPECTIVE    PROFITS. 

allegation  of,  in  action  for  damages  for  breach  of  contract,  647,  note, 

PROTEST. 

submission  to  arbitration  without,  effect,  182,  note. 


GENERAL   INDEX.  1011 

PROVISIONAL    REMEDIRS.    See  tit.  Remedies. 

PUBLIC    BODY. 

contract   to  provide  mp.terial,  construction,  174. 

PUBLIC    BUILDING,    ETC. 

right  of  subcontractor  where  contractor  fails  to  pay,  76,  note. 

PUBLIC    MONEYS. 

garnishment  of,  591,  note. 

PUBLIC    PROPERTY, 

mechanic's  lien  does  not  attach  to,  153. 

PUBLIC    SCHOOL    HOUSE. 

bond  given  by  contractor  for  erection  of. 

as  to,  generally,  219,  note, 
action  on,  220,  note. 

PUBLIC    TRUSTEES. 

notice  to,  additional  to  remedy  on  bond,  522. 
service  of. 

given  to  trustees  of  state  building,  522. 

notice  of  claim  of  lien  upon,  521. 

PUBLIC    WORK. 

bond  of  contractor  on,  219,  note,  570. 
by  trustee  of  state  agricultural  college,  571,  note, 
liability  of  sureties  on,  571,  note, 
sehoolhouse,  bond  of  contractor,  219,  note, 
who  may  resort  to  bond,  571,  note. 

PUBLICATION. 

of  notioe  of  sale,  impeaching  record   of,  778,  note. 

PUMP. 

placed  in  water-works,  lien  for,  94. 

PURCHASER.     See  tits.  Owner;  Owner,  employer,  or  person  cau.sing 
improvement, 
and  lien-holders. 

defective  claim  of  lien   as  notice  to  bona  fide  third  parties,  538. 
rights  of,  .537. 
as  implied  agent  of  grantor,  532,  note, 
assuming  debt,  personal  judgment  against,  759. 
mortgage  for,  priority  as  between,  and  meclianic's  lien,  458. 
name  of,  in   claim  of  lien.     See  tit.  Names  required  to  be  stated 
in  claim. 


1012  GENERxVL   INDEX. 

PURCHASEE  (continued). 

of  property  of  estate  assuming  debts,  not  estopped,  700,  note, 
two  or  more,  statement  of  names  in  claim,  330. 

QUANTITY, 

statement  of  claim  showing,  337,  note. 

QUANTUM    MERUIT. 

action  on,  based  upon  request,  584,  note, 
amendment  setting  up,  726,  note, 
evidence  in  suit  brought  on,  690,  note. 

recovery  on  a,  in  an  action  on  one  account  for  the  total  sum  due,  618, 
note. 

QUESTIONS    OF    FACT. 

as  to  what  are,  703. 

QUESTIONS    OF    LAW. 

as  to  what  are,  704. 

QUESTIONS    RAISED    IN    THE    DECISIONS. 

as  to  the  California  mechanic's-lien  law,  3. 

RACETRACK, 

in  fair-ground,  amount  of  land  necessary  lor,  396,  note, 

RAILROADS, 

application  of  mechanic's  lien  to,  301,  403,  note, 
contract  to  grade,  172. 

description  in  case  of,  in  claim  of  lien,  357. 
extent  of  land  subject  to  mechanic's  lien  on,  404. 
filing  mechanic's  lien  on  extension   of,  403,  note, 
lien  rn,  given  by  Oregon  statute,  13,  note,  17, 
mechanic's  lien  on, 

as  to,  generally,  352,  note. 

extends  to  what,  403,  404. 
place  of  filing  claim  of  lien  for  record,  375, 
powder  used  in  construction  of,  subject  of  lien,  90. 
structure  within  provisions  of  mechanic's-lien  law,  144. 
tools  used  in  construction  of,  not  subject  of  mechanic's  lien,  88. 

RATIFICATION, 

of  contract,  164. 

REASONABLE    ATTORNEYS'    FEES,     See  tit.  Attorneys'  fees 

REASONABLE    PRICE. 

variance  as  to,  effect,  714, 


GENERAL   INDEX.  1013 

REASONABLE    STIPULATIONS. 

when  implied  in  contract,  174. 

REASONABLE    TIME. 

determination  of  what  is  a,  175,  note. 

REASONABLE    VALUE. 

variance  between  pleading  and  proof  as  to,  immaterial,  722. 

REASSIGNMENT. 

to  claimant  of  assigned  claim,  538,  note. 

REBUTTAL. 

testimony  of  contractor  in,  on  charge  of  malperformance  of  work, 
694,  note. 

RECEIPT. 

prima  facie  evidence  of  facts  recited,  677. 

RECITALS. 

in  decree  in  foreclosure,  762. 

RECORD.    See  tit.  Recordation. 
insufficient  on  appeal,  791. 
of  claim  of  lien,  purpose  of,  297. 
on  appeal.     See  tit.  Appeal. 
insufficient,  791. 

RECORDATION. 

necessity  of  one  or  more  claims,  298. 

notice   of,   limited   to   subsequent   mortgagees   and   purchasers,   447, 

note. 
of  claim  of  lien,  purpose  of. 

as  to,  generally,  297. 

to  inform  other  claimants,  298. 

to  perfect  lien,  298. 
of  contract,  not  necessary  in  California,  230. 
of  original  contract,  when  required,  223,  note, 
place  of  filing  for. 

as  to,  generally,  375. 

in  case  of  railroad.  375. 

removal  of  claim  of  lien  from  recorder's  office,  375. 

RECORDED    CLAIM    OF    LIEN. 

denial,  in  answer,  on  inforinutioii  and  belief,  659. 
evasive  denials.     See  tit.  Answer, 
exception  to  rule,  659. 


1014  GENERAL   INDEX. 

RECORDER. 

indorsement  of  filing  of  claim  of  lien  prima  facie  evidence  of  what, 
687. 

RECORDER'S    OFFICE. 

removal  of  claim  of  lien  from,  375. 

REDEMPTION. 

as  to  right  of,  782. 

by  subsequent  mortgagee  not  made  party,  782. 

REDUCTION. 

of  attorney's  fee.    See  tit.  Attorneys'  fees. 

REDUCTION- WORKS. 

erected  upon  a  mine,  lien  upon,  140. 

on  mining  claim,  included  in  mechanic's  lien,  409. 

REFORMATION    OF    INSTRUMENT. 

priorities  in  case  of,  460. 

RELATION, 
doctrine  of. 

as  to,  generally,  450. 

distinction  as  to  time  at  which  lien  attaches,  452. 

in  case  of  mine,  451. 

RELEASE.     See  tit.  Release  of  lien. 
of  assignor  of  contract,  580,  note, 
of  prior  assignment,  543. 

RELEASE    OF    LIEN.     See  tits.  Forfeiture;  Waiver  of  lien, 
as  to,  generally,  580. 
agreement  to  assign  claims  to  owner. 

as  to,  generally,  581. 

agreement  does  not  constitute  an  accord,  582. 

pro  rata  amount  left  blank,  581. 

where  owner  does  not  seek  any  compromise,  582. 
composition  agreement.     See  tits.  Arbitration;   Composition  agree- 
ment. 

as  to,  generally,  580. 

definition   of,   580. 
effect  of  compromise  agreement. 

as  to,  generally,   582. 

all  creditors  need  not  sign,  582. 

modifying  agreement  by  oral  qualifications,  582. 
note  for  release  of  surety's  lien  without  consideration,  580,  note. 


GENERAL   INDEX.  lUlo 

RELEASE  OF  LIEN   (continued;, 
obtained  by  fraud,  580. 
release  of  assignor  of  co7itract,  580,  note. 

REMEDIAL    PROVISIONS.    See  tit.  Remedies. 

liberally  construed,  30. 

REMEDIES, 
cumulative. 

as  to,  generally,  583. 

action  by  material-man.     See  tit.  Material-man. 

as  to,  generally,  589. 
action  by  original  contractor.     See  tit.  Original  contractor. 

as  to,  generally,  585. 
action  by  owner.     See  tit.  Owner. 

as  to,  generally,  590. 
action  by  owner's  laborers.     See  tit.  Owner's  laborers. 

as  to,  generally,  589. 
action  by  subelaimants.     See  tit.  Subclaimants. 

as  to,  generally,  588. 
action  for  damages  for  failure  to  give  bond,  589,  note, 
action  on  quantum  meruit,  584,  note, 
attachment  for  moneys  due,  584,  note, 
election  where  several  suits  commenced,  584. 
express  contract,  common  counts,  584. 

nature  of  action  to  foreclose  lien.     See  tit.  Foreclosure  of  lien, 
personal  action,  583. 

personal  judguient.     See  tit.  Personal  judgment, 
allowed  in  action  to  foreclose  lien,  584,  note. 
for  amount  due,  effect  of,  585,  note, 
suit  to  foreclose  lien. 

against  property  and  fund,  585,  note, 
for  labor  on  threshing-machine,  585,  note, 
where  remedies  given  are,  584. 
enjoining  sale  under  process,  to  protect  mechanic's  lien,  592,  note, 
injunction  against  sale  on  foreclosure  of  lien  where  wife  not  made 

party,  592. 
provisional. 

as  to,  generally,  590. 
attachment.     See  tit.  Attachment, 
as  to,  generally,  591. 
garnishment.    See  tit.  Garnishment, 
after  suit  commenced,  591. 
before  suit  commenced,  591. 
of  public  moneys,  591,  note, 
materials  exempt  from,  592. 
for  damages  claimed  for  breach  of  contract  by  delay  to  deliver, 
591,  note. 


1016  GENERAL   INDEX. 

EEMEDIES.     Provisional  (continued), 
injunction. 

as  to,  generally,  592. 

fund  not  deposited  in  court,  592. 
materials  exempt  from  attachment,  592. 
statutory  provision,  590. 

BENTS. 

damage  for  loss  of,  by  failure  of  contractor  to  complete,  69,  note. 

REPAIR. 

counters  and  partitions  added  to  building  as  fixtures  are  a,  121. 
distinction  between,  and  "  alteration,"   121. 

REPEALS. 

by  implication,  not  favored,  46. 

direct,  of  act  repeals  amendments,  46. 

not  affected  by  provisions  devoid  of  constitutional  force,  46. 

REPRESENTATIVE    CAPACITY. 

authority  of  persons  acting  in,  to  confer  right  to  mechanic's  lien, 
420,  note. 

REPUDIATION. 

of  part  of  contract  with  architect  by  owner,  rights  of  architect,  590, 
note. 

"  REPUTED." 

amendment  inserting,  before  the  word  "  owner,"  503,  note. 

REPUTED    OWNER.     See  tit.  Owner. 

cannot  bind  property  for  street  improvements,  6,  note, 
distinction  between,  and  owner,  468. 
estoppel  of  owner  by  acts  of,  40. 
powers  of,  39. 

REQUEST. 

of  owner.     See  tit.  Owner. 

of  person  named,  sufficiency  of  allegation  in  statement  of  claim,  328. 

REQUIREMENTS. 

of  statutory  original  contract,  224. 

RESCISSION. 

consent  of  owner  to,  283. 

of  contract,  as  evidence  of  fraud,  700. 


GENERAL   INDEX.  1017 

RESOLUTION. 

of  board  of  supervisors  as  certificate,  683,  note. 

RETROSPECTIVE    LAWS. 

as  to,  generally,  41. 

contract  under  existing  law  not  affected  by  subsequent  act,  42. 

extension  of  statutory  agency  by  the  amending  act,  effect  of,  42,  note. 

EIGHT    CONFERRED    BY    MECHANIC'S    LIEN. 

nature  and  scope  of,  20. 

personal,  in  case  of  service  of  notice  of  claim  of  lien,  511. 

BIGHTS. 

under  mechanic's-lien  laws,  how  ascertained,  44,  note, 

BIGHTS    AND    DUTIES, 

under  statutory  original  contract,  202,  note. 

BULES    OF    PLEADING.     See  tit.  Complaint. 
as  to,  in  action  to  foreclose  mechanic's  lien,  616. 

BUNNING    ACCOUNT, 

time  begins  to  run  against  mechanic's  lien  on,  when,  453, 

SALE, 

as  to,  generally,  778. 

application  of  proceeds  to  junior  executions,  781. 

as  to,  of  different  parcels  subject  to  different  rights  of  claimants, 

779,  note, 
deed  on,  the,  781. 
enjoined, 

under  other  process  to  protect  mechanic's  lien,  592,  note. 

where  wife  not  made  party,  592,  note, 
manner  of  executing  judgment,  779, 
of  lease-holder's  interest,  782. 
on  general. 

creditors  foreclosing  lien,  779,  note. 

execution,  778,  note. 
order, 

directing  amount  of  land  to  be  sold.     See  tit.  Land, 

directing  sale  of  entire  building  on  foreclosure  of  lien,  765, 

marshaling  assets  of,  778,  note, 
publication  of  notice  of,  impeaching  record,  778,  note, 
purchaser  having  notice  of  facts  affecting  priorities,  781. 
the  deed,  781. 
time  of,  780. 

unnecessary  expenses  on,  not  costs,  768,  note. 
upon  subsequent  decree  upon  reinstatement  of  claim,  779,  note. 


1018  GENERAL   INDEX. 

SALE  (continued). 

void  order  of,  directing  distribution,  778,  note. 
"  writ  "  not  an  "  execution,"  780. 

SECURITY.    See  tit.  Surety. 

acceptance  of  note  as  waiver  of  lien,  575. 
assignment  of,  by  instrument  separate  from  debt,  541. 
taking  additional,  as  waiver  of  lien,  575. 
title  of  assignee  of,  and  right  to  enforce,  541. 

SEIZIN. 

instantaneous.     See  tit.  Instantaneous  seizin. 

SEPARATE  LOTS. 

buildings  on,  under  one  contract,  lien,  299,  note,  300. 

SERVANT.    See  tit.  Laborer. 
definition  of,  103,  note. 

SET-OFF.    See  tit.  Offsets  and  counterclaims. 

by  owner,  of  costs  and  interest  against  contractor,  769. 

SEVERAL  NOTICES. 

effect  of  serving,  524. 

SEVERANCE. 

of  building  from  freehold,  change  of  character  of  property,  152. 

SEWER  IMPROVEMENT. 

personal  judgment  against  contractor,  error  when,  757,  note. 

SEWERS. 

a  system  of,  is  an  improvement  to  lots  entitling  contractor  to  lien, 
148. 

SHAFT.    See  tit.  Mines  and  mining  claims. 

true  significance  of  word,  127. 

SHELVING. 

lien  for  installing,  151,  note. 

SHOVELS.    See  tit.  Tools. 

SHRINKAGE. 

of  embankment,  evidence  to  show,  675,  note. 

SIDEBOARDS. 

lien  for  installing,  l.^l,  note. 


GENERAL   INDEX.  1019 

SIDEWALK. 

part  of  building,  under  certain  circumstances,  147. 

SIGNATURE. 

of  notary  to  verification,  omission  of  place  of  residence,  effect,  362, 

note, 
sufficient,  to  notice,  502,  note, 
to  claim  of  lien,  360. 

SIGNING.    See  tits.  Signature;  Subscription. 

time  of,  in  statutory  original  contract,  immaterial,  227. 

SITU. 

cost   of   labor    for   placing   in,   where    charged   as   part    of    cost    of 

materials  subject  of  lien,  91. 
material-man  placing  in,  lien  for  labor,  81. 

SPACE. 

for  convenient  use  and  occupation.    See  tit.  Convenient  use  and  occu- 
pation, 
as  to,  generally,  395. 
construction  of  phrase,  395. 

judgment  of  court  may  be  exercised  when,  396. 
liens  properly  confined  to,  396.  • 

SPANISH  GRANT. 

land  held  under,  not  within  statute,  145. 

SPECIAL  CASE. 

mechanic's-lien  proceedings  not  a,  within  constitution,  49. 

SPECIAL  DEFENSES.    See  tit.  Answer. 
setting  up,  660. 

SPECIFICATIONS. 

deviation  from,  does  not  discharge  sureties  when,  565,  note. 

lien  of  architect  for,  120,  note. 

warranty  of  design  or  plan  under  express,  175. 

SPIRIT. 

of  the  mechanic's-lien  law. 
as  to,  generally,  6. 
a  privilege,  in  Utah,  7,  note, 
extraordinary  right,  in  Oregon,  7,  note, 
in  Colorado,  7,  note. 
in  Oregon,  7,  note. 
in  Utah,  7,  note. 


1020  GENERAL   INDEX. 

SPLITTING  DEMANDS, 
not  allowed,  341. 

STAKE-HOLDER. 

owner  as  a,  490. 

STAMP-MILL. 

erected  upon  a  mining  claim,  lien  upon,  141. 

STATEMENT. 

as  to  improvement,  336,  note, 
does  not  mean  an  "  account,"  333,  note, 
embracing  several  assigned  liens,  31-5,  note. 

in  claim  for  lien.     See  "  Claim  of  lien,"  this  title,  and  tit.  Claim  of 
lien, 
fullness  required  in,  308. 

name  required  to  be  inserted  in.     See  tit.  Name, 
of  demand.     See  tit.  Demand. 

against  two  or  more  buildings.     See  tit.  Buildings, 
as  to,  generally,  317. 
after  deducting  credits  and  offsets,  312. 
commingling  lienable  and  non-lienable  items,  316. 
"  demand." 

construction  of,  313,  note, 
means  what,  313. 
errors  or  mistakes  in  statement  of,  312,  note, 
object  of  provisions  for,  315. 
sufficency  of,  315. 
truth  of,  309. 
unnecessary  in. 

as  to,  generally,  309. 
contractual  relation  with  owner,  310. 
implication  of  law,  309. 
knowledge  of  owner,  309. 
other  matters,  310. 
surplusage,  312. 
variance  in,  from  strict  requirements,  309. 
what  generally  required,  308. 
in  memorandum  filed. 
defective,   241. 
must  not  be  too  general,  238. 
of  work  to  be  done,  general  principles,  238. 
in  memorandum  of  contract,  defective,  241. 

of  claim  of  lien.    See  "  In  claim  of  lien,"  this  title,  and  tit.  Claim  of 
lien, 
for  labor  performed  by  day,  at  specified  prixje  amounting  to  more 
than  one  thousand  dollars,  342,  note. 


GENERAL   INDEX.  1021 

STATEMENT.     Of  claim  of  lien   (continued). 

itemizing.    See  tit.  Itemizing. 

nature,  must  be  correctly  stated  in  claim,  343. 

sufficienc}'  of,  342,  note. 

when  must  show  contract  with  contractor,  327,  note, 
of  price  of  labor  in  claim  of  lien,  340. 

setting  out  contract  price  and  demanding  sum  of  $ ,  315,  note. 

showing  quantity,  time,  value,  etc.,  337,  note. 

terms,  time  given,  and  conditions  of  contract,  fatally  defective  when, 
336. 

STATEMENT  OF  CLAIM. 

false,  effect  of,  314,  note, 
insufficiency  of,  329,  note, 
itemizing.    See  tit.  Itemizing. 

made  part  of  claim,  314,  note, 
sufficiency  of,  334,  note. 

STATEMENT  OF  INTENTION. 

to  perform  labor  or  furnish  material,  under  Utah  statute,  294,  note. 

STATUTE. 

California.     See  tit.  California. 

difficulties  of,  3. 
contract  for  building  made  with  reference  to,  161. 
new  act. 

effect  on  existing  contracts,  42. 

saving  clause  in,  effect  on  existing  claims,  43. 
specifying   classes   for   which  lien   is   given,   impliedly   excludes   all 

others,  114,  note, 
structures  enumerated  by.    See  tit.  Structures, 
to  be  carefully  studied  in  all  cases,  2,  5. 

STATUTE  GIVING  THE  LIEN. 
California.  See  tit.  California, 
other  states,  tabulation  of,  5. 

STATUTE  OF  LIMITATIONS. 

against   action  on  bond,     f^rc  tit.  Bond  of  contractor. 

against  cross-complainant,  594,  note. 

against  foreclosure  of  lien  on  threshing-machine.  593,  note. 

begins  to  run  on  mechanic's  lien  on  open  account  when,  170,  note. 

court  to  determine  issue  as  to  limitations,  594,  note. 

in  action  against. 

school  board  by  architect,  593,  note. 

sureties  on  contractor's  bond,  594,  note, 
must  be  pleaded,  to  be  availed  of,  594. 


1022  GENERAL   INDEX. 

STATUTE  OF  LIMITATIONS  (continued). 

pleaded  to  some  of  counts  only,  nonsuit  not  granted,  734. 
ruiming  of. 

against  enforcement  of  mechanic's  lien,  593,  note. 

on  cessation  of  work,  28.5. 
time  when  begins  to  run  against  mechanic's  lien,  370,  note. 

STATUTORY  AGENCY.    See  tit.  Agency. 

undue  extension  to,  of  rules  applicable  only  to  common-law  agency, 
535. 

STATUTORY  BOND.    See  tit.  Contractor's  bond. 

contract  void,  bond  valid,  553. 

formalities  of,  552. 

liability  on,  554. 

sureties  and  liabilities.     See  tit.  Surety. 

void,  effect  on  claimants,  552. 

when  enforceable  as  a  common-law  obligation,  554, 

STATUTORY  EQUIVALENT. 

acceptance,  waiver,  283. 
cessation  of  labor  for  thirty  days. 

as  to,  generally,  284. 

as  affected  by  validity  or  invalidity  of  contract,  287. 

character  of  cessation,  286. 

running  of  statute  of  limitations,  285. 

scope  of  provision,  285. 
character  of  occupation  or  use,  281. 
consent  to  abandonment  or  rescission  of  contract,  283. 
occupancy  and  use,  280,  281. 

of  completion  of  contract  for  purpose  of  filing  claims  of  lien,  279. 
void  contract,  282. 

STATUTORY  ORIGINAL  CONTRACT.     See  tits.  Building  contract; 
Contract, 
allegation  that,  was  in  writing,  not  necessary  in  action  to  foreclose 

lien,  619,  note, 
compared  with  non-statutory  original  contract,  202. 
construction  of,  176. 
contract  price. 

computable,  more  than  one  thousand  dollars,  is  a,  203. 
less  than  one  thousand  dollars  is  not,  202. 
definition  of,  166. 
duty  of  owner  to  file,  479. 
effect  of  validity  or  invalidity  of . 
as  to,  generally,  244. 
abandonment  of  contract,  246. 


GENERAL   INDEX.  1028 

STATUTORY  ORIGINAL  CONTRACT.     lOffect  of  validity  or  invalid- 
ity of  (continued). 
breach  by  nonfeasance  or  malfeasance  of  contractor,  damages  by 

owner,  249. 
effect  of  invalidity  of  contract, 
as  to,  generally,  250,  2.36. 

classes  affected  by  invalidity  of  contract,  2.51. 
contractor's  lien,  or  express  or  implied  contract,  2.32. 
effect  as  between  parties  to  contract,  251. 
evident  intent  of  statute,  2.51. 

failure  to  file  contract,  rights  of  subclaiinants,  255. 
how  far  contract  effective,  256. 
lien  claimants. 

must  follow  statute,  255. 
other  than  the  original  contractor,  254. 
material-man  is  not  estopped  by  what,  256. 
to  what  extent  contract  may  be  looked  to  by  parties,  252. 
void  contract  cannot  be  basis  of  recover^',  252. 
where    there    is    no    contractual    relation    between    owner    and 
claimant,  254. 
evading  statute  by  filing  contract  price  less  than   one   thousand 

dollars,  203. 
how  far  subclaimants  bound  by  terms  of,  246. 
lumber  and  workmanship  below  contract  requirements,  effect  of, 

247. 
must  be  entered  into,  before  work  commenced,  226. 
owner's  liability  under, 
as  to,  generally,  244. 
limitation  on  power  of  legislature,  245. 
validity  of  contract  as  notice,  245. 
owner's  redress  for  failure  to  comply  with  terms,  248. 
penalty  in,  176. 

presumption  as  to  knowledge  of  subclaimants,  246. 
provisions  as  to,  not  applicable  to  non-statutory  original  contracts, 

204. 
rights  and  duties  under,  202,  note, 
subcontractors  bound  by,  78. 

subject  to  change  and  modification  by  the  parties,  260. 
substantial  compliance  with  contract,  250. 
verbal  and  void. 

claimant  must  comply  with  provisions  of  statute,  to  secure  lien 

296. 
does   not  relieve   claimant   from   complying   with   provisions   of 
statute,  296. 
void. 

lien  of  subcontractor  for  value  of  work,  76. 
rights  of  subcontractor  under,  78. 


1024  GENERAL   INDEX. 

STATUTORY  ORIGINAL  CONTRACT.     Eflfcct  of  validity  or  invalid- 
ity of.     Void  (continued). 
statement  of  claim  of  lien,  327. 
suit  on,  by  original  contractor,  588. 
what  in  no  event  is  a,  204. 
rights  and  duties  under.  202,  note. 
statutory  requirements  essential  to  validity, 
as  to,  generally,  222,  223. 
statutory    provision. 

conspiracy  as  to  contract  price. 
as  to  effect  of,  242. 
penalties  for,  243. 
construction  of  code  provision,  22.5. 
filing  necessary. 

as  to,  generally,  229. 
copy  of  contract,  233,  note, 
duty  to,  rests  on  whom,  230. 
failure  to  file,  effect,  229,  note, 
necessity  for,  230. 
need  not  be  recorded,  230. 
object  of,  230,  231. 

reference  to  matters  dehors  the  contract.  232. 
what  a  sufficient  filing,  234, 

when  contract  refers  to  plans  and  specifications  as  signed.  233. 
where  plans  and  specifications  are  referred  to,  232. 
whole  contract  must  be  filed,  232. 
memorandum  of  contract.     See  tit.  Memorandum  of  contract, 
analogies  suggested  by  defective  statements,  241. 
contract,  or  copy  thereof,  as  memorandum,  235. 
description  of  property  to  be  affected  thereby,  237. 
drawings  and  plans  which  are  part  of  the  contract,  237,  note, 
erroneously  describing  the  adjoining  lot,  237,  note, 
expression   in,   of   "drawings   hereto   annexed,"   construction, 

240. 
general  effect  of  provision  for,  234. 
names  of  all  parties  to  the  contract,  236. 
object  of  filing  memorandum,  235. 
payments,  as  to,  generally,  241. 
purpose  and  object  of  provision,  23.5. 
reference  to  detail  drawings,  241. 
reference  to  plans  and  specifications,  239. 
should  show  dimensions  and  character  of  work,  238. 
statement  as  to  erection  of  building  in  conformity  to  plans, 

drawings,  etc.,  239,  note, 
statement  as  to  purpose  for  which  building  is  intended,  238, 
note. 


GEXERAL   INDEX.  1025 

STATUTORY  ORIGINAL  CONTRACT.  Statutory  requiroments  essen- 
tial to  validity.  Statutory  provision.  Memorandum  of 
contract   (continued). 

statement  in,  must  not  be  too  general,  238. 

statement  of  the  general  character  of  the  work  to  be  done, 
237. 

statement  of  work,  general  principles,  238. 

statutory  provisions  as  to,  234. 

what  not  required  in  memorandum,  23.5. 

where  does  not  disclose  there  were  any  plans,  240. 

where  memorandum  gave  size  of  lot,  etc.,  239,  note, 
must  be  entered  into  before  commencement  of  work. 

as  to,  generally,  226. 

estoppel  as  to  invalidity  of  contract,  226. 
must  be  in  writing. 

as  to,  generally,  226. 

plans  and  specifications  referred  to  not  filed  with,  227. 

referring  to  adjoining  house  as  pattern,  227. 
must  be  subscribed. 

as  to,  generally,  228. 

actual  time  of  signing,  immaterial,  229. 

as  to  signing  plans  and  specifications,  22S,  note. 

drawings  and  specifications,  as  to  signing,  228,  note. 
place  of  filing  contract  or  memorandum,  242. 
recordation. 

not  necessary,  230. 

of  original  contract,  when  required,  223,  note, 
requirements  of  statutory  original  contract,  224. 
time  of  filing  contract  or  memorandum. 

as  to,  generally,  242. 

general  rule  as  to,  242. 
what  not  essential  to  validity  of  contract.  224. 
Statutory  requirements  not  essential  to  validity  of  whole, 
payments  in  general,  207. 
provisions  avoiding  certain  clauses. 

impairment  of  liens,  statutory  provisions,  220. 
in  case  of  non-statutory  contract,  221. 
provision  not  applicable  when,  221. 
waiver  or  impairment  of  lien,  221. 
provisions  imposing  a  penalty,  207. 
statutory  provisions, 
as  to,  generally,  207. 
contract  price  not  to  be  payable  in  aavance  of  work. 

as  to,  generally,  209. 

under  act  of  1862,  209. 
contract  price  payable  in  instalments  or  after  completion.  210. 
Mech.   Liens  —  65 


1026  GENERAL    INDEX. 

STATUTORY  ORIGINAL   CONTRACT.     Statutory  requirements  not 
essential  to  validity  of  whole.     Statutory  provisions   (con- 
tinued), 
contractor's  bond. 

action  for  failing  to  take  bond  under  statute,  218,  note. 

complaint  in  action  on,  219,  note. 

decisions  concerning  bond,  219. 

effect  of  giving,  common-law  obligation,  218. 

failure  to  file,  action  for  damages  for,  219,  note. 

insufficient  when,  219,  note. 

is  collateral  obligation  enforceable  by  subclaimants,  219,  note. 

limitation  of  action  on,  219,  note. 

of  contractor  on  public  school  house,  219,  note. 

provision  for,  unconstitutional,  217. 

suit  on  bond,  220. 
general  rule  as  to  payment,  212. 
object  of  provisions. 

as  to,  generally,  208. 

as  to  payment,  212. 
owner  pays  at  own  risk,  212. 

partial  payments  may  safely  be  made  by  owner,  212. 
payment. 

in  money,  216. 

of  bills,  provisions  for,  sufficiency  of,  211. 

of  twenty-five  per  cent,  thirty-five  days  after  completion,  211. 

provided  for  to  material-men,  210. 
provision. 

as  to  liens,  215. 

for  withholding  percentage  of  contract  price,  211. 
scope  and  object  of  provisions,  208. 
stipulated  payments,  as  to  offsets  against,  211,  note, 
substantial  compliance  required,  effect  of,  208. 
sufficient  compliance  with  statute. 

as  to,  generally,  213. 

last  payment  thirty-six  days  after  completion,  213. 

less  than  twenty-five  per  cent  reserved,  214. 

substitution  of,  thirty  days  after  completion,  sufficient  when, 
214. 
third  payment  to  contractor,  210. 
what  not  substantial  compliance,  214. 

STATUTORY  PROVISIONS. 

as  to. 

agency  in  creation  of  mechanics'  liens,  530. 

claim  of  lien,  resemblance  between,  292. 

extent  of  lien,  764. 

forfeiture  bj'  false  or  excessive  claim  or  notice,  577. 


GENERAL    INDEX.  1027 

STATUTORY  PROVISIONS.     As  to  (continued). 

parties  plaintiff  in  foreclosure  of  mechanic's  lien,  602. 

I^lace  of  commencing  action  to  foreclose  lien,  597. 

provisional  remedies,  590. 

waiver  of  lien,  574. 
of  California,  134. 
special,  as  to  agency,  677. 

STATUTORY  REQUIREMENTS. 

as  to  notice  of  claim  of  lien,  525. 

STAY  BOND. 

lien  enforced  when,  791. 

STAY  OF  PROCEEDINGS. 

in  case  of  bankruptcy,  725,  note. 

STEAM  PLANT. 

material-man  placing  in  situ,  lien,  81. 

STIPULATION. 

does  not  remedy  defect  when,  671,  note. 

estoppel  by,  724,  note. 

waiving  service  of  notice  of  appeal,  790. 

STOPES.     See  tit.  Mines  and  mining  claims, 
true  significance  of  word,  127. 

STOVEPIPE-FLUE. 

cover  for  a,  not  a  fixture,  94,  note. 

STREET  IMPROVEMENT.     See  tits.  Grading;  Street- work. 

notice  of  non-responsibility  not  required  in  case  of,  441. 
reputed  owner  cannot  bind  property  for,  6,  note. 

STREET- WORK.     See  tits.  Grading;  Street  improvement. 

and  grading  under  code  provisions,  347. 

as  to  whether  provision  requiring  notice  of  completion,  etc.,  applies 
to,  .382. 

digging  up  and  disturbing,  as  evidence  of  grant  under  ordinances, 
683,  note. 

grading  and  other  work,  lot  in  incorporated  city,  includes  what  ter- 
ritory, 402. 

inchoate  contract  for.  162. 

materials  furnished  for,  lien,  95. 

new  trial  on  appeal  in  case  of  conflict  of  evidence,  803. 

no  statutory  original  contract  for,  166. 

request  for,  by  real  owner,  gives  lien,  161. 


1U28  GENERAL    INDEX. 

STRICT  CONSTRUCTION.     See  tit.  Construction. 

STRUCTURES. 

as  to  notice  of  completion  or  cessation  from  work  on,  383. 
as  used  in  statute,  does  not  relate  to  sidewalks  in  streets,  118. 
enumerated  in  statute. 

as  to,  generally,  141. 

aqueduct,  142. 

bridges,  141. 

buildings,  141. 

church  is  a  building,  141. 

dance-hall,  being  covered  and  resting  on  sills,  141. 

ditch,  142. 

flume,  142. 

machinery  a  fixture  upon  realty,  143. 

railroads,   144. 

tunnel  in  mining  claim,  142. 

well,  142. 
in  general,  first  clause  of  statute,  138. 
land  for  convenient  use  and  occupation  of.     See  tit.  Convenient  use 

and  occupation, 
lien.     See  tit.  Lien. 

allowed  for,  118. 

on  portion  of,  403. 

on,  separate  from  land,  14. 

primarily  upon,   151. 
meaning  of,  as  used  in  mechanic's-lien  law,  136,  137,  note. 
not  enumerated  in  statute. 

as  to,  generally,  139. 

boarding-house  on  mining  claim,  139. 

ice-room  attached  to  warehouse,  140. 

pipe  line  for  an  irrigation  company,  140. 

poles  set  in  ground  for  an  electric  line,  140. 

reduction-works  upon  a  mine,  140. 

stamp-mill  erected  upon  a  mine,  141. 

swings  between  upright  posts  on  playground,  141. 

tramway  erected  upon  a  mining  claim,  141. 
on  a  mine,  oil-well,  138. 
several  on  one  piece  of  land,  404. 

SUBCLAIMANTS. 

action  against,  by  original  contractor,  .588. 
actions  by. 

as  to,  generally,  588. 

under  a  valid  contract,  589. 

under  a  void  contract,  589. 
agency  to  receive  notice  of  claims  of,  536. 


GENERAL   INDEX.  1029 

SUBCLAIMANTS  (continued). 

cannot  acquire  any  rights  against  owner  when.  49.5,  note, 
conclusively  presumed  to  have  knowledge  of  original  contract  when, 

246. 
cutting  off  rights  of,  by  assignment,  543. 
distinction  between,  and  original  contractor,  508. 
entitled  to  interest.     See  tit.  Interest, 
as  to,  generally,  753,  note, 
in  case  of  unliquidated  claims,  753,  note. 
how  far  bound  by  terms  of  valid  original  contract,  246. 
necessity    of    showing    contractual    relation    between    owner    and 

employer,  338,  note. 
no  means  of  knowledge  on  failure  to  file  statutory  original  contract, 

255. 
personal  judgment  against  contractor  on  default,  760. 
right  to  enforce  bond  as  collateral  obligation,  219,  note, 
rights  in  fund  on  abandonnieut  of  void  contract,  250,  note. 
under  a  valid  original  contract  may  allege  work  was  done  at  request 

of  owner,  625. 
variance  between  complaint  of,  and  proof,  immaterial  when,  723. 

SUBCONTEACT. 

definition  of,  166. 

not  an  "  original  contract,"  165. 

SUBCONTRACTOR. 

and  employees  of  material-man,  74. 
architect  as,  111. 
bound  by  contract. 

as  to,  generally,  78. 

of  person  through  whom  he  claims,  247,  note, 
claimant  of,  entitled  to  interest.    See  tits.  Interest;  Subcontractor's 

claimant, 
claimants  under,  extent  of  lien,  413. 
contract  of. 

and  contractor,  effect  on  lien,  412. 

not  an  "  original  contract,"   165. 
cutting  off  rights  of,  by  original  contract,  75,  note, 
deemed    to    have    contracted    with    owner    where    original    contract 

void,  76. 
definition  of,  72,  529,  note, 
degrees  of,  73. 
distinction  between. 

and  assignee  of  original  contractor,  72,  note. 

and  material-man,  73. 
general  rights  of,  under  constitution,  74. 


1030  GENERAL   INDEX. 

SUBCONTRACTOR  (continued). 

interest  of  his  claimant  a  charge  against,  755. 

liability  of  surety  where  contract  and  bond  contemplate  employment 

of,  558,  note, 
lien  allowed  to,  118,  note. 

lien  not  given  to,  as  such,  by  constitution,  32. 
lien  of.     See  tit.  Lien. 

as  to,  generally,  72,  note,  73,  note. 

for  value  of  work,  although  included  in  contractor's  claim,  77. 

where  contractor  makes  no  application  of  payments  to,  75,  note, 
materials  must  be  such  as  contract  calls  for,  to  entitle  to  lien,  247. 
no  contractual  privity  between  owner  and,  530,  note, 
no  interest  in  fund  provided  by  contractor  to  protect  owner  against 

liens,  74,  note, 
not  agent  of  owner  to  determine  value  of  materials,  529,  note, 
not  converted  into  original  contractor  by  void  contract,  73. 
not  merely  subrogated  to  rights  of  original  contractor,  75,  note, 
obligations  of,  general,  77. 
personal. 

liability  of,  to  his  own  material-man,  78. 

rights  of,  against  contractor,  76. 
prevented   from   performing   by   original   contractor,   not   liable    on 

bond,  75,  note, 
priority  of  lien  of  original  contractor,  77. 

privity  of  contract  between,  and  owner,  is  wanting,  73,  note, 
proper  party  in  action  to  foreclose  lien,  60S. 
rights  of. 

in   case   of  public   building,   etc.,   where   contractor   fails   to   pay, 
76,  note. 

to  file  claim  of  lien,  although  amount  included  by  contractor,  77. 

under  void  original  statutory  contract,  76,  78. 

where  original  contract  valid,  75. 
state  of  account  of,  between,  and  original  contractor,  413,  note. 
variance  of  contract  by,  liability  of  surety  on  bond  of  original  con- 
tractor, 55S,  note. 

SUBCONTRACTOR'S    CLAIMANT. 

interest  of,  a  charge  against  subcontractor,  755. 

SUBMISSION    TO    ARBITRATION.     See  tit.  Arbitration  agreement. 

SUBSCRIPTION. 

statutory  original  contract,  to,  necessary,  228. 

SUBSEQUENT    AGREEMENT. 

change  of  statutory  original  contract  by,  261,  note. 


GENERAL   INDEX.  1031 

SUBSTANTIAL    COMPLIANCE.     See  tit.  Performance, 
in  statutory  original  contract. 

what  is  a,  213. 

what  is  not  a,  214. 
required  in  statutory  original  contract,  208. 
with  statute  as  to  names  in  claim  of  lien,  318. 
with  statutory  original  contract,  what  is,  250. 

SUBSTANTIAL    PERFORMANCE.     See  tit.  Performance. 

finding  as  to,  740. 
generally  required,  274,  275. 

SUFFICIENCY. 

of  notice  of  claim  of  lien,  526. 

SUFFICIENCY    OF    IDENTIFICATION, 
in  description  of  property  in  claim  of  lien. 

as  to,  generally,  3-lS. 
a  question  of  fact,  351. 

SUMMONS. 

alias  summonses  in  consolidated  action,  600,  note. 

as  to  service  of,  in  action  to  foreclose  mechanic's  lien,  600. 

publication  of,  600,  note. 

service  of. 

by  publication,  600,  note. 

on  cross-complaint  unnecessary,  600,  note. 

on  one  spouse,  where  community  property  involved,  600,  note, 
time  of  service  of,  on  foreign  corporation,  600,  note. 

SUPERINTENDENT. 

of  construction,  lien  allowed  for,  120,  note,  123,  note. 
of  corporation  erecting  a  building  performing  no  manual  labor,  no 
lien,  119,  note. 

"  SUPERINTENDENT    OF    A    MINE." 

distinguished  from  "  mining  superintendent,"  124,  note. 

SUPERINTENDING    CONSTRUCTION. 

lien  of  architect  for,  120,  note,  123,  note. 

SUPERIOR    COURT.     See  tit.  Supreme  court. 

jurisdiction  to  foreclose  mechanic's  lien,  598. 

SUPPLEMENTAL  ANS'WER.     See  tits.  Answer;   Pleading  and  pro- 
cedure. 

as  to,  generally,  656. 

decree  of  foreclosure  of  mortgage  may  be  set  up  in,  068. 


1032 


GENERAL    INDEX. 


SUPREME  COURT.  See  tit.  Superior  court, 
application  for  attorneys'  fees  in,  776,  note, 
lower  court  fixing  attorneys'  fees  in,  776. 

SURETY.     See  tit.  Security. 

application  of  payments  for  benefit  of,  557,  note. 

as  lien  claimant,  561. 

as  to  counterclaim  of,  551,  note. 

completing  contract. 

on  death  of  contractor,  560,  note. 

on  default  of  contractor,  560,  note, 
corporation  as,  551,   note. 

distinction  between  voluntary  grantor  and  compensated,  551,  note, 
estopped,  in  action  on  bond,  by  judgment  of  owner  against  contrac- 
tor, 561. 
finishing  building  after  abandonment,  550,  note, 
liability  for  damages.     See  tit.  Damages. 

as  to,  generally,  568. 

extras,  for,  570. 

for  excess  of  cost  on  abandonment,  569. 

interest  as  damages  in  action  on  bond,  569,  note. 

liability,  and  amount  thereof,  question  for  jury,  569,  note. 

on  contractor's  bond,  on  failure  of  owner  to  secure  certificate  of 
architect,  568,  note. 
liability  of. 

for  attorneys',  fees.     See  tit.  Attorneys'  fees. 

on  contractor's  bond  to  laborers  and  material-men  not  entitled  to 
lien,  550,  note, 
not  discharged  by  deviations  from  specifications,  565,  note, 
not  estopped  to  foreclose  lien,  699. 
not  liable  as  contractors,  565,  note. 
not  released. 

by  contractor  having  partner  unknown  to  owner  and,  551,  note. 

from  obligations  for  contractor  when,  563. 

where  payments  under  contract  made  monthly,  565,  note, 
obligee  depositing  sufficient  funds  in  hands  of,  563. 
on  contractor's  bond,  liability  of. 

as  to,  generally,  555. 

application  of  payments  for  benefit  of  surety,  557,  note. 

assignment  to,  545. 

auditing  accounts  as  provided  in  contract,  558. 

bond  conditioned  for  faithful  performance  by  the  contractor,  558, 
note. 

changes  in  contract  authorized  thereby, 
as  to,  generally,  557. 

provision  for  benefit  of  contractor  that  alteration  should  be  made 
in  writing,  557,  note. 


GENERAL    INDEX.  1033 

SURETY.     On  contractor's  bond,  liability  of  (continued), 
contract  for  liquidated  damages  against,  558,  note, 
entitled  to  stand  upon  the  strict  terms  of  the  contract,  556,  note, 
liable,  even  though  there  is  a  variance  from  the  contract,  558,  note, 
limitation  of  action  against,  594,  note, 
material  alteration  of  contract,  effect  on,  556,  note, 
on  change  of  plans  at  additional  cost,  557,  note, 
original  contract  as  basis  of,  557. 
provision  that  owner  should   pay  receipted  bills  as  they  become 

due,  does  not  release,  557,  note, 
where  contract  and  bond  contemplate  employment  of  subcontrac- 
tors, 558,  note, 
parol  evidence  admissible  to  show  supposed  principal  a,  675,  note, 
premature  payments  exonerates.     See  tit.  Payment, 
as  to,  generally,  564. 
unless  bond   provides  payments   may   be   made   prematurely,   565, 

note, 
unless  pa3Mnent  was  made  with  knowledge  and  consent  of  surety, 

565,  note, 
waiver  of  defense  of  premature   payment   by  provision  in   bond, 
565,  note, 
release  of,  without  consideration,  580,  note, 
rights  of,  notice,  560. 
under  legal  obligation  not  to  foreclose  lien,  562. 

SURPLUSAGE. 

in  statement  of  claim  of  lien  is  immaterial,  312. 

SURVEY. 

admission  as  to  correctness  of,  672,  note. 

of  lot,  claimant  not  required  to  make,  before  filing  claim  of  lien,  350. 

SWINGS. 

erected  upon  playground,  lien  upon,  141. 

TEAMING. 

for  material-man,  no  lien  for,  132. 

TECHNICAL    DEFECTS. 

in  complaint  to  foreclose  lien,  cured  by  acts  of  parties  when.  619. 

TENANT. 

contract  by,  with  consent  of  landlord,  binding  on  propertv,  58. 

evidence  of  non-liability  of,  671,  note. 

mechanic's  lien  on  landlord's  interest  created  by,  532,  note. 


1034  GENERAL    INDEX. 

TENDER.     See  tit.  Tender  before  suit, 
allegations  of,  stricken  out  of  answer,  661. 
as  admission  of  amount  due,  725,  note, 
failure  to  make  or  to  offer  to  allow  judgment,  effect,  492. 

TENDER    BEFORE    SUIT.     See  tit.  Tender. 

costs  of  claim  of  lien  not  demandable  on,  725,  note. 

TERMS    AND    CONDITIONS. 

of  contract,  sufficient  statement  of,  in  claim  of  lien,  34?),  note. 

TERMS,     TIME     GIVEN,     AND     CONDITIONS     OF     CONTRACT. 
See  tit.  Claim  of  lien, 

as  to,  generally,  333. 

amount  of  entire  contract  price  should  be  given,  343,  639. 

time  given  and  conditions  should  be  set  out,  639. 

to  be  set  out  in  complaint  to  foreclose  lien,  639. 

TERRITORIAL   EXTENT    OF    LIEN.     See  tit.  Limitations  on  liens. 

TEST. 

as   to   whether   claimant   an   original   contractor.      See   tit.  Original 

contractor. 
of  labor  entitling  to  a  lien,  132. 

THEORY. 

of  the  mechanic's-lien  law.     See  tit.  Mechanic's-lien  law. 

as  to,  generally,  7. 

in  Colorado,  8,  note. 

in  Hawaii,   8,  note. 

in  Montana,  8,  note. 

in  New  Mexico,  8,  note. 

in  Oklahoma,  8,  note. 

in  Oregon,   8,   note. 

in  Utah,  9,  note. 

in  Washington,  9,  note. 

labor  on  a  mining  claim,   7,  note. 

work  in  "  developing,"  8,  note. 

THIRD    PERSONS. 

as  to,  generally,  537,  550. 
assignees.    See  tit.  Assignees. 

contractor's  bond,  rights  under.     See  tits.  Common-law  bond;  Con- 
tractor's bond;  Statutory  bond, 
defective  claim  of  lien  as  notice  to,  538. 
effect  of  decree  foreclosing  lien  on,  751. 
general  creditors.     See  tit.  General  creditors. 


GENERAL   IXDEX,  1035 

THIRD  PERSONS   (continued), 
lien-holders.     See  tit.  Lien-holders, 
mortgagees.     See  tit.  Moi-tgagees. 
purchasers.     See  tit.  Purchasers. 
sureties,  liability  of.     See  tit.  Sureties. 

THIRTY  DAYS'  CESSATION  FROM  LABOR.  See  tit.  Notice  of 
completion  or  cessation  of  work. 

as  to,  generally,  387,  388,  note. 

default  of  building  contractor  or  owner  affecting  statute  of  limi- 
tations, 3S7. 

subclaimants  cannot  file,  whether  contract  valid  or  void,  when,  388. 

THRESHING-MACHINE. 

action  to  foreclose  lien  for  labor  on,  585,  note. 

costs  in  action  to  foreclose  lien  on,  for  less  than  jurisdictional 
amount,  599,  note. 

TILING. 

material-man  placing,  in  situ,  lien,  82. 

TIME. 

actual,  of  signing  statutory  original  contract,  immaterial,  229. 

at  which  lien  attaches,  distinction  as  to,  452. 

certificate  of  architect,  as  affecting,  386. 

computation  of,  378. 

failure  to  file  claim  within,  effect,  376. 

first  and  last  day  in  computing,  378,  note. 

for  filing  claim  under  act  of  March,  1897,  370,  note. 

for  performance  of  non-statutory  contract  may  be  enlarged  by  parol, 

261,  note. 
having  ceased,  inchoate  right  to  lien  ceases,  371. 
of  conimeucing  action  to  foreclose  lien.     See  tit.  Statute  of  limita- 
tions. 

as  to,  generally,  593. 

against  sureties  on  contractor's  bond,  594,  note. 

amendment  of  complaint  relates  back,  59o. 

as  to  running  of  statute  of  limitations  against,  593,  note. 

by  cross-complainant,  594,  note. 

credit  giveu,  595. 

debt  must  be  payable,  595. 

general  rule  as  to,  595. 

in  action  to  foreclose  lien  on  threshing-machine,  593,  note. 

issue  of  limitations  determined  by  court,  594,  note. 

right  in  plaintiff'  and  a  correlative  wrong  in  defendant,  595. 
of  completion  of  building. 

"  on  or  about,"  sufficiency  of,  in  complaint  to  foreclose  lien,  652. 

uncertainty  in  allegation  of,  demurrer,  652. 


1036  GENERAL    INDEX. 

TIME  (continued). 

of  filing  claim.     See  tit.  Filing  claim. 

burden  of  proof  of,  682. 
of  filing  contract  or  memorandum,  242. 
of  giving  notice  of  claim  of  lien,  523. 
of  performance  of  contract.     See  tit.  Performance. 

of  non-statutory  contract,  may  be  enlarged  by  parol,  261,  note. 
of  sale.     See   tit.  Sale. 

as  to,  generally,  780. 
purpose  of  requiring  claim  to  be  filed  within  certain. 

as  to,  generally,  372. 

in  case  of  void  contract,  374. 
statement  of  claim  showing,  337,  note, 
to  foreclose  lien  upon  fund,  596. 
when  not  fixed  by  statute,  378. 
when  statute  of  limitations  begins  to  run. 

as  to,  generally,  370,  note. 

against  mechanic's  lien  on  running  account,  453,  note. 

"TIME    GIVEN." 

construction  of  phrase,  345,  note. 

refers  to  what  in  the  statutory  provision,  345. 

TIME    OF    PAYMENT, 
variance  as  to. 

between  pleading  and  proof  as  to,  immaterial,  722. 
effect,  716. 

TIME    OF    PERFORMANCE. 

construction  of  contract  where  unspecified,   174. 

TIME,    PLACE,    AND   MANNER    OF    COMMENCING   ACTION   TO 
FORECLOSE    LIEN. 

lis  pendens.     See  tit.  Lis  pendens. 

manner  of  commencing  action.     See  tit.  Foreclosure  of  lien. 

place  of  commencing  action.     See  tit.  Place. 

time  of   commencing  action.     See   tit.  Time. 

TITLE. 

in  trust,  liability  to  mechanic's  lien,  420. 

questions  of,  not  adjudicated  in  decree  foreclosing  lien,  750,  note. 

TOOLS. 

furnished  in  construction  of  railroad  not  subject  of  lien,  88. 

TRAINS. 

general  manager  of,  performing  manual   labor  in   other   capacities, 
lien  of,  119,  note. 


GENERAL   INDEX.  1037 

TRAMWAY. 

erected   upon  a  mining  claim  for  use  in  working  same,  lien   upon, 
141,  409. 

TRANSCRIPT. 

failing  to  show  motion  or  order,  dismissal,  792,  note. 

TRESPASSER. 

liability  of  fee  for  improvements  by,  484. 

TRIAL.    See  tits.  Jury;  Practice. 

after  consolidation  of  actions,  728. 
by  jury. 

as  to,  on  foreclosure  of  mechanic's  lien,  731. 
instruction  to  jury,  731. 
as  to   agency. 

and  knowledge  of  principal,  731,  note, 
in  superintending  work,  731,  note, 
as  to  verbal  alteration  of  contract,  731,  note, 
comment  on  evidence  by  court  in  making,  731,  note, 
conflicting,  731,  note, 
exceptions  to,  731,  note, 
not  excepted  to,  binding,  731,  note, 
verdict  of  jury. 

as  to,  generally,  732. 
setting  aside,  732. 
new.     See  tit.  New  trial. 

"  TRIFLING    IMPERFECTION." 

as  to,  generally,  272. 
meaning  of  term,  272. 
what  constitutes,  273. 

TRUST    RELATION. 

authority  of  persons  in,  to  create  right  to  mechanic's  lien,  420,  note. 

TRUSTEE. 

authority  to  confer  right  to  mechanic's  lien,  415,  note, 
trustee  in  bankruptcy,  place   of  foreclosing  lien   by,  598,  note. 

TUNNEL.     See  tit.  Mines  and  mining  claims, 
a  structure,  under  statute,  lien  upon.  142. 
contract  to  timber  in  workmanlike  manner,  171. 
running  a,  as  to,  127. 
true  significance  of  work,  127. 


1038  GENERAL   INDEX. 

TWENTY-FIVE    PER    CENT    OF    CONTRACT    PRICE. 

as  to  withholding,  211. 

need  not  be  retained  under  non-statutory  original  contract,  204. 

payment  of,  thirty-five  days  after  completion. 

as  to,  generally,  211. 

object  of  the  provision,  212. 

owner  pays  at  own  risk,  212. 

partial  payments  may  be  safely  made  when,  212. 

what  a  sufficient  compliance  with  provision,  213. 

what  not  sufficient  compliance  with  provision,  214. 
withholding  less  than,  sufficient  compliance  when,  214. 

TWO    HOUSES. 

equal  application  of  payment  on.     See  tit.  Payment. 

as  to,  generally,   198,  note. 
lieu  on. 

as  to,  generally,  462,  463,  note. 

statutory  provision,  462. 

when  provision  as  to,  applicable,  462. 

ULTIMATE    FACTS. 

to  be  found,  739. 

UNCERTAINTY.     See  tits.  Ambiguity;  Contract;  Pleading  and  pro- 
cedure, 
demurrer  for,  655,  note, 
of  claim  of  lien.     See  tit.  Claim  of  lien. 

UNLIQUIDATED    CLAIMS. 

subclaimant  entitled  to  interest  on,  753,  note. 

UNLIQUIDATED    DEMANDS, 
interest  on,  755. 

UNNECESSARY    STATEMENTS. 

iu  claim  of  lien.     See  tits.  Claim  of  lien;  Statement. 

UPRISES.     See  tit.  Mines  and  mining  claims. 
true  significance  of  word,  127. 

USE    OF    MATERIALS. 

findings  as  to,  737. 

UTAH. 

mechanic's-lien  law  of,  6,  13. 


GENERAL   INDEX.  1039 

VALID    CONTRACT. 

as  to,  goiicrally,  38. 

last  paymeDt  under,  496. 

liability  of  ovrncr  or  employer  under,  494. 

payment  of  fund  into  court  relieves  from  interest,  755. 

VALID    OR   VOID    CONTRACT. 

pleading  and  proof  ou,  varianct;  material,  720. 
variance  as  to,  immaterial  when,  713. 

VALID    ORIGINAL    CONTRACT. 

abandonment  of,  effect   on  priorities,  464. 

subordination  of  the  original  contractor  to  subclaimants,  464,  note. 

VALID    STATUTORY   ORIGINAL   CONTRACT. 

limitation  of  claimant's  lien  under,  481. 
notice  of  claim  of  lien  in  case  of. 

as  to,  generally,  510,  513. 

in  case  of  abandonment,  514. 
offsets  and  counterclaims  of  owner  against  contractor  under,  471. 

VALIDITY. 

of  claims  of  sublienors.  burden  of  proof  to  show.  681. 

of  contract.     See  tits.  Contract;  Statutory  original  contract. 

of  decree  on  foreclosing  of  mortgage,  751,  note. 

VALUE. 

as  to  proof  of,  705. 

as  used  in  statute  giving  lien  construed  to  mean   "  agreed   value," 

412. 
of  extra  work. 

contract  as  evidence  of,  705. 

express  contract  for,  705. 
of  labor  under  void  contract,  738. 
of  materials  furnished  under  void  contract,  738. 
other  evidences  of,  709. 
market  price  as  evidence  of,  708. 
statement  of  claim  showing,  337,  note, 
usual  price  as  evidence  of,  708. 
valid  contract  as  evidence  of,  705. 
void  contract  as  evidence  of,  706,  707. 

VARIANCE.     See  tits.  Bond;  Complaint;  Conflict. 

as  to,  generally,  710. 

as  to  current  market  price,  718. 

as  to  date  of  contract. 

generally,  718. 

interest  after  miiturity,  718. 


1040  GENERAL   INDEX. 

VARIANCE    (continued), 
as  to  express  contract,  718. 
as  to  implied  contract,  718. 
as  to  nature  of  work,  719. 
as  to  person   contracting, 
agoncy  of  contractor,  717. 
generally,  717. 
as  to  pleadings  and  proof. 

as  to  bond  being  signed  by  principals,  723. 
as  to  contracting  directly  with  owner  or  agent,  720. 
as  to  contractual  indebtedness,  721. 
as  to  fund,  721. 
as  to  Indefinite  contract,  720. 
as  to  nature  of  work,  721. 
as  to  owner's  employee,  723. 
as  to  person  contracting, 
agency,  721. 
generally,  721. 
as  to  subclaimant,  723. 
as  to  time  of  payment,  722. 
as  to  valid  or  void  contract,  720. 
generally,  719. 
immaterial. 

as  to,  generally,  722. 
as  to  express  price,  722. 
as  to  reasonable  value,  722. 
material  variances. 

as  to  agreed  price,  720. 
as  to  contract,  720. 
as  to  no  price  agreed,  720. 
as  to  regular  market  price,  718. 

between  allegations  and  proof  in  case  of  husband  and  wife,  712. 
between  claim  of  lien, 
and  complaint,  711,  note, 
and  evidence,  713,  note, 
and  notice  of  intention,  711,  note, 
and  pleadings. 
in  proof,  711. 
material  when,  711. 
as  an  exhibit  and  allegations  of  complaint,  639. 
as  exhibit  and  body  of  complaint,  653. 
between  contract   stated   in   claim   of  lien   and   allegations  in   com- 
plaint, 711. 
between  pleading  and  proof  as  to,  material,  721. 
by  what  rules  governed,  713. 
immaterial. 

after  trial  on  merits  when,  65.5,  note. 

as  to  being  employee   of  original  contractor,  723. 


GENERAL    INDEX.  1041 

VARIANCE.     Immatorial   (continued). 

as  to  bond  being  signed  by  principals,  723, 
as  to  express  price,  722. 
as  to  name  of  reputed  owner,  717. 
as  to  payment,  713. 
as  to  reasonable  value,  722. 
as  to  time  of  payment,  722. 
as  to  what  are,  712,  717,  722. 
in  case  of  contractor  as  agent  of  owner,  712. 
in  case  of  subclaimant  setting  up  original  contract,  713. 
in  case  of  void  contract,  712. 
in  description  of  property,  713. 
liability  of  surety,  where  made  by  original  contractor  and  subcon- 
tractor, 558. 
material. 

as  to,  generally,  711. 

as  to  agreed  price,  714,  720. 

as  to  amount  paid,  716. 

as  to  contracting  directly  with  owner  or  agent,  720. 

as  to  contractual  indebtedness,  721. 

as  to  deduction  of  credits  and  offsets,  716. 

as  to  express  and  implied  contract,  what  is,  712. 

as  to  fund,  721. 

as  to  indefinite  contract,  720. 

as  to  nature. 

of  labor,  716. 

of  work,  721. 
as  to  person  contracting. 

agency,  721. 

generally,  721. 
as  to  reasonable   value,  714. 
as  to  the  contract,  720. 
as  to  time  of  payment,  716. 
as  to  valid    or   void   contract,   720. 
as  to  what  are,  714. 
as  to  work  and  materials,  712. 
in   claim  and  proof,  713-716. 
pointing  out  specific  objection  as  to. 

between   contract   as  set  out   in   complaint  and   in   claim   of   lien, 

688,  note, 
of  claim  offered  and  claim  pleaded.  688,  note, 
technical  doctrine  of,  of  common  law,  has  no  application,  719. 

VENDEE. 

in  possession. 

interest  of,  bound  by  mechanic's  lien,  421. 
making  improvements,  estoppel,  438. 

of  land  under  contract  with  owner,  liability  to  mechanic's  lien,  418. 
Mech.  Liens  —  66 


1042  GENERAX,   INDEX. 

VERBAL    ALTERATIONS. 

of  original  contract,  194. 

VERDICT, 

not  set  aside  as  being  against  evidence  when,  797,  note, 
plaintiff  not  entitled  to  interest  prior  to,  755,  note. 

VERIFICATION.     See  tit.  Complaint. 
by  agent,  364. 
by  attorney,  364. 

by  attorney  for  foreign  corporation,  362,  note, 
errors  in,  effect  of,  364. 
of  claim  of  lien.     See  tit.  Claim  of  lien. 

as  to,  generally,  361. 

containing  more  than  statute  requires,  362,  note. 

form  of,  362. 

provisions  as  to  verifications  of  pleadings  not  applicable,  362. 
of  complaint,  as  to,  648. 
omissions  in. 

effect  of,  364. 

of  place  of  residence  of  notary  from  signature  to,  effect,  362,  note, 
time  of,  364. 

VOID   CONTRACT.     See  tit.  Contract. 
abandonment  of,  liability  of  owner,  482. 

allegations  in  comj^laint  to  foreclose  mechanic's  lien  under,  626. 
as  a  defense  to  foreclosure  of  lien,  663. 
burden  of  determining  when  is,  390. 
contractor. 

is  agent  of  owner  when,  531. 

right  to  costs,  769. 
fact  showing  original  contract  to  be  void  need  not  be  alleged,  626. 
filing  claim  of  lien  in  case  of,  374. 
findings  as  to.     See  tit.  Findings. 

as  to,  generally,  745. 

sufficient  to  support  judgment  when,  747. 
liability  of  owner  under,  497. 
no  assumption  of,  in  motion  for  nonsuit,  733. 
no  defense  in  personam,  663. 
no  lien  under,  for  extra  work,  195. 
original  contract  void,  necessity  of  filing  claim,  375. 
penal  provision,  498. 

personal  liability  to  subclaimants  under,  499. 
presumption  of  knowledge  by  subclaimants  of,  696. 
priorities  under.     See  tit.  Priorities. 
statute  measure  of  liability  under,  499. 


GENERAL   INDEX.  1043 

VOID  CONTRACT   (continued), 
statutory  original. 

elaiinant  under,  required  to  file  claim  within  what  time,  389. 
original  contractor  abandoning  coutract,  subclaimants  to  file  when, 
390. 
unnecessary  to  allege,  in  complaint  to  foreclose  lien,  amount  due  to 
contractor,  626. 

VOID    LIEN. 

cannot  be  converted  into  a  valid  one  by  consent,  16,  note. 

VOID    ORIGINAL    CONTRACT. 

admissible  in  evidence  for  what  purposes,  693. 

VOID  STATUTORY  ORIGINAL  CONTRACT, 

notice  of  claim  of  lien  in  case  of,  514. 

VOLUNTARY    PAYMENTS. 

made  by  owner,  effect,  68. 

WAGES. 

evidence  as  to  adjustment  of,  672,  note. 

WAGON-ROAD. 

constructing,  to  mine,  no  lien  for,  123,  note. 

WAIVER. 

acceptance  as  a,  283. 

of  certificate.      See    tit.  Certificate. 

of  condition  procodont.    See  tit.  Condition  precedent. 

of  defect  in  complaint,  by  failure  to  object,  651,  note. 

Of  lien. 

as  to,  generally,  572. 
entry  of  judgment, 
as  to,   generally,   576. 
right  to  a  money  judgment,  577. 
knowledge  of  lack  of  authority  of  employer,  575. 
owner  cannot  waive  final  certificate  of  architect,  572,  note, 
statutory  provisions  in  California, 
as  to,  generally,  574. 

under  non-statutory  original  contract,  574,  note, 
taking  additional  security. 
as  to,  generally,  575. 
acceptance  of  note,  575. 
by  giving  orders  on  mining  company,  576. 
under  act  of  1856,  575,  note, 
where  material-man  gives  receipt,  576. 
under  statute  of  1856,  573,  note. 


1044  GENERAL   INDEX. 

WAIVER   (continued). 

of  mechanic's  lien,  216,  note. 

of  rights,  contractor  cannot  make  when,  71. 

or  impairment  of  liens  by  matters  dehors  the  contract,  219,  note. 

rejection  of  evidence  as  to,  of  provision  in  contract,  685,  note. 

WARRANTY. 

performance  of,  271. 

WASHINGTON. 

mechanic's-lien  law  of,  6,  8,  13. 

WATCHMAN.     See  tit.  Mines  and  mining  claims. 
at  mine.     See  tit.  Mines  and  mining  claims. 

employment  by  constructive  agent  of  owner,  680. 
in  idle  mine,  not  entitled  to  lien,  127,  128,  note, 
not  entitled  to  mechanic's  lien  for  services,  91,  note. 

WATER-WORKS, 

extent  of  land  subject  to  mechanic's  lien  on,  404. 

WELL. 

as  object  of  labor  in  mechanic's  lien,  636. 
lien  upon. 

and  "  appurtenances,"  395,  note. 

as  a  structure,  142. 

WELL-HOLES. 

contract  to  bore  two  thousand  feet  of,  171. 

WIFE. 

court  has  no  jurisdiction  to  foreclose  lien  against,  where  not  made 
party,  752,  note. 

memorandum  of  settlement  made  by,  acting  for  community,  680,  note. 

necessary  party  to  foreclose  mechanic's  lien  on  community  prop- 
erty, 592,  note,  600,  note,  605,  note. 

not  made  party,  sale  on  foreclosure  of  lien  enjoined,  592,  note. 

of  partner  not  necessary  party  to  foreclose  mechanic's  lien,  605,  note. 

personal  judgment  against,  not  reviewable  on  appeal  without  excep- 
tions, 792,  note. 

property  of,  bound  by  husband's  act  when,  430,  note. 

separate  property  of,  bound  by  mechanic's  lieu  when,  426,  note. 

"  WITHIN." 

in  statute  providing  for  filing  claim,  378. 

WITNESS. 

allowed  to  explain  on  redirect  examination,  685,  note, 
claimant  against  estate  as  a,  674. 


GENERAL   INDEX.  1045 

WITNESS  (continued). 

oxaniiiiation  of,  questions  assuming  matter  in  dispute,  676. 
impeaching,  as  to  estimate  of  work,  683,  note. 

WORDS    AND    PHRASES.     See  tit.  Definition. 

"  abandonment,"  confounding  with  "  cessation,"  477,  note. 
"  action,"  what  is  not,  but  "  special  case,"  18,  note. 
"  actual  "  time  of  completing  structure,  385. 

"  after  deducting  all  credits,"  expression  need  not  be  used  in  state- 
ment of  claim  of  lien,  31.5,  note. 
"  agreed  price,"  in  contract  for  improvement,  11. 
"  alteration  "  distinguished  from  "  repair,"  121. 
"  any  such  contract,"  meaning  of,  259. 

"  any  such  lien,"  in  California  statute,  meaning  of,  122,  note. 
"  any  such  mine,"  meaning  of  term,  122,  note. 
"  architect,"  definition  of,  108. 

"  as  construed,"  confounding  with  "  rule  of  construction,"  21. 
"  bestowed,"  meaning  of,  116. 
"  building,"  church   is  a,  141. 

"  building  or  other  improvement,"  meaning  of,  135,  note. 
"  cash." 

condition  of  contract  means  nothing  when,  346. 
means  "money"  or  "ready  money,"  346. 
"  caused,"  person  who,  improvement  to  be  made,  66,   157. 
"cessation,"  confounding  "abandonment"  with,  477,  note. 
"chutes,"  meaning  of,  in  statute,  127. 
"  claim  of  lien,"  not  synonymous  with  "  notice  of  lien  "  and  "  lien," 

293,  note. 
"  completed,"  filing  claim  of  lien  when  building  is,  295,  note. 
"  completion,"  meaning  of,  265. 
"  completion  of  mining  claim,"  279. 

"  construction,  alteration,  addition  to,  or  repair,"  meaning  of,  92,  120. 
"  contract,"  what  referred  to,  287. 
"  contractor,"  definition  of,  54. 
"  convenient   use   and   enjoyment,"    equivalent   to   "  convenient   use 

and  occupation,"  395. 
"  correct  description,"  as  to,  of  property,  348,  note. 
"  credit,"   as  to  meaning  of,  34G. 
"  crosscuts,"  meaning  of,  in  statute,  127. 
"  demand." 

construction  of,  313,  note. 

different  from  "  statement  of  the  terms,"  etc.,  333. 
meaning  of,  313. 
"  developing  "  work  in  mine,  8,  note. 

"  drawings   hereto   annexed,"   meaning  of,   in   memorandum   of  con- 
tract, 240. 
"  drifting  in  a  tunnel,"   not   "  construction,  alteration,   addition    to, 
or  repair  of  any  building,"  94,  126. 


1046  GENERAL   INDEX. 

WORDS  AND  PHEASES    (continued). 
"  equivalent  to  "  completion,  what  is,  281. 
"  execution,"   "  writ  "  not  an,  780. 
"  for    the    value,"    not    used    in    contradistinction    to    "  price "    or 

"  agreed  value,"  411. 
"furnished,"  meaning  of,  88. 
"  further  advances,"   what   constitutes,  460. 
"  future  advances,"  what  are,  549,  note. 

"  his  contract,"  in  statement  of  demand,  refers  to  what,  338. 
"  impairing  obligations  of  contracts,"  40. 
"  improvement." 

equivalent  to  "  objects,"  893. 

in  expression  "  building  or  other  improvement,"  117,  128,  136. 

in  statute  regarding  mechanics'  liens  equivalent  to  what,  392, 

meaning  of,  as  used  in  different  sections  of  statute,  136. 

what  is  not,  within   meaning  of  statute,   359. 
"  improves,"  meaning  of,  128. 
"  inclines,"  meaning  of,  in  statute,  127. 
"  intermediate  "  liens,  as  to,  55,  59. 
"  levels,"  meaning  of,  in  statute,  127. 
"  levels,"  true  signification  of,  127. 
♦'  lien." 

meaning  of,  293. 

not  synonymous  with  "  claim  of  lien,"  293,  note. 
"  lot,"  in  statute  regarding  street  improvements,  393. 
"  market  value,"  is  equivalent  to  "  reasonable  value,"  341,  note. 
"  material,"  construction  of  word  as  used  in  claim,  342,  note. 
"  material-man." 

difficulty  to  determine  whether,  or  an  "  original  contractor,"  60. 

meaning  of,  80. 
"  mine,"  as  to  what  is  a,  8. 
"  mining  claim." 

is  applied  to  mineral  lands  appropriated  by  private  persons,  145. 

land  held  under  agricultural  patent  not  a,  146. 
"  mining  superintendent  "  distinguished  from  "  superintendent  of  a 

mine,"  124,  note. 
"  money  "  or  "  ready  money,"  word  "  cash  "  equivalent  to,  346. 
"  notice  of  lien,"  not  synonymous  with  "  claim  of  lien,"  293,  note. 
"  object,"  distinguished  from  "  property,"  133. 
"  occupied,"  construed  to  mean  "  employed,"  369. 
"  original  contractor." 

definition  of,  54. 

who  is,  287. 
"  owner." 

and  "  reputed  owner,"  distinction  between,  468. 
cannot  be  an  "  original  contractor,"  57. 

includes  "  person  who  caused  improvement  to  be  made,"  467. 
"  plaintiff  "  construed  to  mean  "  claimant,"  369. 


GENERAL    INDEX.  ^"*^ 

WORDS  AND  PHRASES    (continued). 

"  pkiiit,"  lien  for  foundation  or  installing,  06. 

"privilege,"  mechanic's  lien  is,  in  Utah,  7,  note. 

"  property,"  distinguished  from  "  object,"  13iJ. 

"  proved,"  by  developing  work,  8,  note. 

"  ready  money,"  "  cash  "  equivalent  to,  346. 

"  reasonable  value  "  is  equivalent  to  "  market  value,"  341,  note. 

"repair"  distinguished  from  "alteration,"   121. 

"  reputed  owner." 

distinction  between,  and  owner,  468. 
expression  used  synonymously  with   what,  468,  note, 
"rule  of  construction,'  confounding  "as  construed"  with,  21. 
"  shafts." 

in  mine,  meaning  of,  in  statute,  127. 
true  signification  of,  127. 
"  special  case." 

mechanic's  lien  action  not  a,  49. 
what  is  a,  and  not  an  "  action,"  18,  note. 
"  special  proceedings,"  mechanic's  lien  as,  49. 
"  statement  "  does  not  seem  to  be  an  "  account,"  333,  note. 
"  statutory  "  time  of  completing  structure,  38.j. 
"  stopes,"  meaning  of,  in  statute,  127. 
"  structure." 

a  "  mine  "  or  pit  sunk  in  a  mining  claim  is  a,  139. 
meaning  of,  136,  137,  note,  138. 

moaning  of,  as  used  in  different  sections  of  statute,  136,  138, 
"  structures." 

as  used  in  statute  giving  mechanics'  liens,  8. 
in  statute  regarding  mechanics'  liens,  385. 
"  subcontractor,"  meaning  of,  72. 
"  substantial  compliance,"  as  to,  26. 
"  sufficient  for  identification." 
a  question  of  fact,  351. 
as  to  when  description  is,  350. 
"terms,  time  given,  and  conditions  of  contract." 
as  to  number  of  statements  of,  335,  note. 
diff<u-ent  from  "  demand,"  333. 
meaning  of  phrase,  333. 
•'  therewith." 

in  statute  regarding  street   improvements,  129,  note, 
uncertainty  of  meaning  of,  in  statute,  129,  note. 
"  time  given,"  as  used  in  statute,  345. 
"  trifling  imperfection,"   meaning  of,  272. 
"  tunnels,"  meaning  of,  in  statute,  127. 
"  ujjiises,"  meaning  of,  in  statute,  127. 
"  used."  materials  to  be,  how,  88. 
"  value." 

as  used  in  statute,  construed  to  mean  "  agreed  value,"  412. 
of  materials  or  work,  11. 


1048  GENERAL  INDEX. 

WORDS  AND  PHRASES    (continued). 

"  within,"  in  statute  respecting  performance  of  an  act,  378. 
"work,"  custodian  of  mining  claim  does  not  perform,  124,  note. 
"writ,"  not  an  "execution,"   780. 

WORK.     See  tit.  Labor. 

conclusiveness  of  certificate  as  to,  683,  note. 

custodian  of  mining  property  does  not  perform,  124,  note, 

done.    See  tit.  Work  done. 

estimate  of.    See  tit.  Estimate  of  work. 

fixtures,  upon,  how  deemed,  151. 

notice  of  completion  or  cessation  of.     See  tit.  Notice  of  completion 

or  cessation  of  work, 
of  a  mine  in  development,  lien  for,  125,  note, 
on  fixtures  in  a  mine,  lien  for,  152. 

WORK   AND    ?<IATERIALS. 

variance  as  to.     See  tit.  Variance. 

WORK    DONE. 

not  necessary  to  recite,  in  claim  of  lien,  317,  note, 
under  separate  contracts,  317,  note. 

WORKMAN.     See  tit.  Laborer. 
definition  of,  103,  note. 

WORKMANSHIP. 

below  contract  requirement,  rights  of  owner,  247. 

WRIT.     See  tit.  Appeal. 
is  not  an  execution,  7S0. 

WRIT    OF    REVIEW.     See  tit.  Appeal. 

WRITING. 

assignment  of  lien  must  be  in,  540,  note. 

non-statutory  original  contract  need  not  be  in    204. 

provision  in  contract  that  alteration  shall  be  made  in,  557,  note. 

statutory  original  contract  must  be  in,  226. 

WRITTEN    ORDER. 

condition  precedent  to  recovery  when,  195. 

for  alterations,  where  engineer  may  direct  additions  to  work,  194, 
note. 

WYOMING. 

mechanics-lien  law  of,  6. 


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